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

In THE

Supreme Court of the United 1

OCTOBER TERM, 1986

GWALTNEY OF SMITHFIELD, LTD.,

Petitioner,

v.

CHESAPEAKE BAY FOUNDATION, INC.

and

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Pear Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF FOR THE RESPONDENTS

Louts F. CLAIBORNE

W ASHBURN AND Kemp, P.C

144 Second Street

San Francisco, California 94188

(415) 548-8131

Jer Mt WATSON *

ANN Powers

ScoTTt RURNS

CHESAPEAKE BAY FOUNDATION, INC,

Suite 815, Heritage Building

1001 East Main Street

Richmond, Virginia 23219

(804) 780.1892

JAMES THORNTON

NANCY MARKS

NATURAL RESOURCES DEFENSE

COUNCIL, INC

122 East 42nd Street

New York, New York 10168

(212) 949-0049

* Counsel of Record Attorneys for Respondents

BEST AVAILABLE COPY

wrieow . Sree Paerwrime Co... we . 788 COG . Wasnimeron OC 80001

QUESTION PRESENTED

Whether the federal district courts have jurisdiction to

entertain a citizen suit under the Clean Water Act against

a past violator without proof or an allegation that the

violation is continuing at the time of filing.

(i)

TABLE OF CONTENTS

Page

STATUTE INVOLVED oo... .2----------eee-eeeeeeeeeeeeeeeeeenee 1

Sn 2

SUMMARY OF ARGUMENT —.--22-------2ccccscssc22000-----00= 5

a sssscoenensempenees 7

A. The Plain Meaning Doctrine is Inapposite Here. x

B. The Statutory Context Suggests Our Construc-

OES 11

C. The Legislative History of the Act Confirms

Our Construction of Section 505 -....................... 15

D. Our Construction of Section 505 Best Imple-

ments the Congressional Objectives _.......... rane 18

E. Our Construction of Section 505 Creates No

Risk of Unfairness or Abuse of the Courts... 22

ae 28

(iii)

iv

TABLE OF AUTHORITIES

Cases: is Page

Atlantic States Legal Foundation v. Al Tech Spe-

cialty Steel Corp., 635 F. Supp. 284 (N.D.N.Y.

0 Es Ea ere 25

Bob Jones University v. United States, 461 U.S.

— TE —F—F—F 18

Connecticut Fund for the Environment and

NRDC v. Job Plating Co., 623 F. Supp. 207 (D.

0 GR RS ERR ens eee 25

EJ. duPont de Nemours and Co. v. Train, 430

8 £ , Se _ 16,19

EPA v. State Water Resources Control Board,

DG In 19

Fishel v. Westinghouse Electric Corp., 617 F.

Supp. 1581 (M.D. Pa. 1965) ................................ 25

Friends of the Earth v. Archer Daniels Midland

Co., 24 Env’t Rep. Cases (BNA) 1993

(N.D.N.Y. 1986) 24

Friends of the Earth v. Facet Enterpriscs, ‘Ine.,

618 F. Supp. 532 (W.D. N.Y. 1984) 00... 25

Hamker v. Diamond Shamrock Chemical Co., 756

HQ i EEE -10, 21

International Paper Co. v. Ouellette, No. 85-1233

(Jan. 21, 1987) ............ vs 19, 26

Locust Lane v. Swatara Township Authority, 636

F. Supp. 534 (M.D. Pa. 1986) .. ta ae

Middleser County Sewerage Authority v. Na-

tional Sea Clammers Ass'n, 453 U.S. 1 (1981). 11, 19,

23

Milwaukee v. Illinois, 451 U.S. 304 (1981). 19

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

807 F.2d 1089 (1st Cir. 1986), petition for cert.

filed, No. 86-1562 (Mar. 17, 1987) 9-10, 26

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) 24

Sierra Club v. Aluminum Co. of America, 585 F.

Supp. 842 (N.D.N.Y. 1984) 000, 28, 24

Sierra Club and NRDC v. C.G. Manufacturing |

Co., Inc., 638% F. Supp. 492 (D. Mass. 1985) 25 |

Sierra Club v. Copolymer Rubber & Chemical

Corp., 621 F. Supp. 1013 (M.D. La. 1985), ap-

peal pending, No. 85-3763 (5th Cir.) .........0........ 10

8 as eee

Vv

TABLE OF AUTHORITIES—Continued

Sierra Club v. Hanna Furnace Corp., 636 F. Supp.

527 (W.D.N.Y. 1985) =e

Sierra Club v. Kerr-McGee Corp., 23 Env't ‘Rep.

Cases (BNA) 5 (W.D. La. 1965) ...................

Sierra Club and NRDC v. Raytheon, 22 Env’t

Rep. Cases (BNA) 1050 (D. Mass. 1984)...

Sierra Club v. Simkins Industries, Inc., 617 F.

Supp. 1120 (D. Md. 1985) ......................0.............

State of Alabama ex rel. Graddick v. Veterans

Administration, 648 F. Supp. 1208 (M.D. Ala.

1986) RS <2 CERN ee oS A eek Sebo

Student Public Interest Research Group v. Ameri-

can Cyanamid Co., 23 Env’t Rep. Cases (BNA)

GS ERE ea eae ae

Student Public Interest Research Group v. An

chor Thread, 22 Env’t Rep. Cases (BNA) 1150

(D.N.J. 1984) .

Student Public Interest Research Group 9 v. _ AT&T

Bell Laboratories, 617 F. Supp. 1190 (D.N.J.

ERE Se ee

Student Public Interest Research Group v. Geo-

gia Pacific Corp., 615 F. Supp. 1419 (D.N.J.

1985)

Student Public Interest Research Group + v. . Jereey

Central Power and Light Co., 642 F. Supp. 103

EG een

Student Public Interest Research Group v. Mon-

santo Co., 600 F. Supp. 1474 (D.N.J. 1985)

Student Public Interest Research Group v. Na-

tional Starch and Chemical Corp., 23 Env't

Rep. Cases (BNA) 1982 (D.N.J. 1985)

Student Public Interest Research Group v. P.D.

Oil and Chemical Storage, Inc., 627 F. Supp.

1074 (D.NJ. 1986)

Student Public Interest Research Group v. Ten-

neco Polymers, 602 F. Supp. 1394 (D.NJ.

1985)

Train v. City of New York, 420 US. 85 (1975)

Page

25

10

25

25

25

25

vi

TABLE OF AUTHORITIES—Continued

Page

Train v. Colorado Public Interest Research Group,

EEE 8, 16-17

Tull v. United States, No. 85-1259 ‘(April 28,

on 13

United States ex rel. Marcus v. Hess, 317 U.S. 537

(| Rr i)

Weinberger v. Romero-Barcelo, 456 US. 305

CBDGB) ...cccccececcesersesecsscecosccvessnnserseesnenseessessssenssensseees 27

Statutory Provisions:

ATES SA acne en 8

CV OS 19

$38 U.S.C. 1819.................... sneepenasenmanctammmantgne ‘ 18

$3 U.S.C. 1319(a) .......... PRES AS ee 18

ET BO} ) 12, 14, 16, 17

33 U.S.C. 1319(a) (3). ciara — » >

OQ A“ RR a 12, 13, 14, 16, 18

33 U.S.C. 1319(d) asuasteo cman

a 17

33 U.S.C. 1819(¢) (1) (B) -.......... atin eeleatcaiiala 17

33 U.S.C. 1319(@) (6) (A) EE AS ea 18

33 U.S.C. 1319(@) (6) (B)..... ee ed

CER UY oD oo] |) 20

OE senses passim

83 U.S.C. 1365(a) 1, 11, 13, 24

$3 U.S.C. 1365 (a) (1)......... ORRIN. |

BD ee, BGI © BD cccccccceccersenccencscscensss nitneedi 13

83 U.S.C. 1365(b) (1) (A) , 14

OO) bY Be 0 hl eer 13

83 U.S.C. 1365 (d) fate eee 13

42 U.S.C. 7604 4. SS 11,17

Water Quality Act of 1987, Pub. L. No. 100-4, See.

$14, 33 U.S.C. 1319(@) 6, 17, 18, 20

Legislative Material:

H.R. Rep. No. 911, 92d Cong., 2d Sess. (1972) ....... 15,17

H.R. Rep. No. 1004, 99th Cong., 2d Sess. (1986). 17-18,

23

S. Rep. No. 414, 92d Cong., Ist Sess. (1971) ....15, 16, 17,

20, 24

Ee .

vii

TABLE OF AUTHORITIES—Continued

Page

S. Rep. No. 50, 99th Cong., Ist Sess. (1985). 17, 18, 25

118 Cong. Rec. 33693 (1972) ; 16

118 Cong. Rec. 33697 (1972) ..................---...... — 12

118 Cong. Rec. 33700 (1972) 16

131 Cong. Rec. S-12026 (daily ed. Sept. 24, 1985) 26

Other Materiais:

EPA Civil Penalty Policy, 41 Env’t Rep. (BNA)

(Fed. Laws) 2991 (1984) a 14, 23

In THE

Supreme Court of the United States

OcTOBER TERM, 1986

No. 86-473

GWALTNEY OF SMITHFIELD, LTD.,

. Petitioner,

CHESAPEAKE Bay FOUNDATION, INC.

and

NATURAL ResouRCES DEFENSE COUNCIL, INC.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF FOR THE RESPONDENTS

STATUTE INVOLVED

Section 505\a) of the Clean Water Act, 33 U.S.C. 1365

a’, provides in relevant part ‘emphasis supplied) :

Except as provided in subsection (b) of this sec-

mn, any citizen may commence a civil action on his

wn behalf—

ee against any person (‘including (i) the

United States, and ‘ii! any other governmental

nstrumentality or agency to the extent permit-

ted by the eleventh amendment to the Constitu-

tion! whe ie alleged to be in violation of (A)

rm eflwent standard or limitation under this

“na pte r or ‘Bi an order issued by the Adminis-

2

trator or a State with respect to such a stand-

ard or limitation, or

(2) against the Administrator where there is

alleged a failure of the Administrator to per-

form any act or duty under this chapter which

is not discretionary with the Administrator.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship of the parties, to enforce such an effluent stand-

ard or limitation, or such an order, or to order the

Administrator to perform such an act or duty, as

the case may be, and to apply any appropriate civil

penalties under section 1319(d) of this title.

STATEMENT

The basic facts and procedural history of the case are

stated bv petitioner and we do not repeat them here. But,

unsurprisingly, the picture is painted with a lawyer's

artistic license, with all the client’s warts removed, the

colors romanticized, and many coats of varnish added.'

Accordingly, it may be useful to stress a few bald truths

—all of them explicitly recited in unchallenged documents

of record, in the parties’ Stipulation (Pet. App. 85 et

seq.) or in the undisturbed Findings of the district court

(J.A. 56-58, 71-118).

1. For more than a year and a half before petitioner

acquired it at the end of October 1981, the plant in suit

had “repeatedly exceeded a number of its [permit] dis-

charge limitations,” and this was fully known to peti-

'To cite only two examples, Gwaltney characterizes its opera-

tions as “normal,” “generat[ing! non-toxic organic wastes” (Pet.

Br. 3), and describes its improvements to the plant as “a new

state-of-the-art wastewater treatment system. Pet. Br. 21. In

actuality, the wastes Gwaltney discharges have the potential for

producing harm to aquatic organisms and can pose a public health

threat (J.A. 100, 105, 106, 110, 113), and Gwaltney’s wastewater

treatment system improvements simply constitute standard treat-

ment for nitrogenous wastes. J.A. 21-25.

tioner. J.A. 73, 100, 110. Indeed, from February 1980

through October 1981, the previous operator had been out

of compliance for 13 mor..hs out of 21 (R. 350-A) and

had committed at least 94 violations (ibid.), many of

them by discharges grossly in excess of the permit (see

R. 440-457). Yet, although it was aware of these defaults

and of the need for substantial improvements even before

purchasing the plant (eg., J.A. 65-68), petitioner was

extremely slow in taking effective measures to correct

either the cause of the chlorination problems or the bio-

logical treatment system. As to the first, the district

court noted petitioner’s refusal to seek outside advice

(J.A. 100, 108), and characterized its attitude as “ex-

ceeding unconcerned,” “lackadaisical,” “border[{ing] on

benign reglect,” and “reflectfing] a certain degree of

willfulness.” J.A. 107-108. Likewise, as to the second

problem, the court found that petitioner took no remedial

steps whatever for more than six months (J.A. 110,

114) and did not complete the new treatment system

until October 1983, two years after acquiring the plant.

J.A. 111. Moreover, while failing to deal adequately with

the waste treatment problems, petitioner increased pro-

duction at the plant, putting additional burdens on the

already deficient waste treatment system. J.A. 66, R. 521.

2. Predictably, the consequence of this unconcerned

and unhurried approach was that excessive discharges of

pollutants continued unabated for a substantial time.

Indeed, significant violations persisted for more than two

and a half years after petitioner became the operator,

until mid-May 1984. J.A. 116-117. Nor were these merely

occasional “upsets.” In this period of 31 months, full com-

pliance was achieved in only four months (J.A. 96-97,

116-117), and more than 160 different violations occurred

(J.A. 100, 116-117), many quite egregious. See FR. 314-

348.

When petitioner’s record is examined in greater detail,

it is no better. As the district court noted (J.A. 105),

4

despite the attempt to “trivialize” the fecal coliform _vio-

lations, these “were not de minimis.” On at least six

occasions, four to seven times the daily limits were dis-

charged and for five months the permitted monthly aver-

age was exceeded by 58% to 150%. Ibid. So, also, there

were 34 chlorine violations, occurring every month for a

full year after petitioner took over the plant. J.A. 106,

116. And in all but twe-ef those months, potentially very

harmful excessive chlorine discharges were effected. J.A.

106.

The TKN problem persisted even longer—if, indeed, it

has been permanently solved. See J.A. 111, 112 n.26,

Pet. App. 7a n.9. There were violations as late as mid-

May 1984—just a month before suit. J.A. 73, 100, 112.

The permitted monthly average-had been exceeded in

most months up to that time, and, in addition, some 69

discharges in excess. of the daily limit occurred. J.A.

116-117. Moreover, whether or not “controllable,” many

of the more nuinerous and gross violations were very

fresh in June 1984. J.A. 117; R. 314-333.

Nor were these excessive discharges merely technical

violations, relatively harmless to the environment. Fecally

associated microbes are potential agents of disease trans-

mission which pose a significant threat to human health.

Chlorine is acutely toxic to fish and other estuarine orga-

nisms. And excessive levels of ammonia and organic

nitrogen (measured by the “TKN” standard) deplete the

water of dissolved oxygen and thereby endanger bottom

dwelling species, such as oysters. See J.A. 100-113.

3. This, then, was the situation in early 1984 when

respondents began the process of initiating legal action.

Several violations occurred during February 1984, the

month at the end of which the statutory notice of intent

to sue was served. See Pet. App. 80a. The Complaint,

filed June 15, 1984, correctly alleged that petitioner had

5

“continued to violate its discharge permit since that

[notice letter].” Para. 17, Pet. App. 82a-83a. The most

current information available to respondents at the time

of filing suit (for March 1984) showed violations still

to be occurring—and they did, in fact, persist some six

weeks longer. It was then reasonable to suppose, as was

stated in the Complaint, that “without the imposition of

appropriate fines and issuance of an injunction, [peti-

tioner would] continue to violate its NPDES permit.”

Para. 18, Pet. App. 83a.

We need only add that, despite an intervening judg-

ment holding it liable, an elaborate stipulation and a

trial, petitioner did not question the district court’s juris-

diction on the ground that there was no ongoing violation

until 11 months after the Complaint had been filed. J.A.

69: see J.A. 72. That, however, is now the sole issue in

this Court, petitioner having long since abandoned its

challenge to respondents’ standing (see Pet. App. 2a n.1)

and more recently given up its quarrels over the penalty

calculation. Pet. 24 n.17; Pet. Br. 7 n.8, 33 n.42.

SUMMARY OF ARGUMENT

A

Our initial submission is that the import of using the

present tense in describing the violator of the Clean Water

Act against whom a citizen may file suit is not so plain

as to foreclose resort to the usual aids to statutory con-

struction. Significantly, no party and no amicus espouses

a strictly literal reading of the text—which would deny

jurisdiction unless the defendant were at least alleged to

be actively violating his permit on the very day suit is

filed. Indeed, petitioner has been ambivalent about the

true reach of Section 505, apparently failing to notice the

present tense as a jurisdictional restriction until almost

a year after this suit was filed and now having signifi-

cantly tempered its once inflexible stand.

6

The statutory context of the critical words indicates

that they were not intended to preclude citizen suits in

respect of past violations. First, Section 505 itself ex-

pressly authorizes the assessment of civil penalties—

which obviously relate to past conduct. Moreover, a com-

parable use of the present tense in describing govern-

mental suits plainly does not bar recovery against a

violator who has ceased his excessive discharges, and

there is no reason for reading the same phrase differently

in the two provisions. Indeed, given the critical role of

civil penalties in enforcing the Act, one would expect this

weapon to be equally available to the citizen who is “stand-

ing in” for the government.

C

The legislative history of the Act confirms our con-

struction. There are express statements endorsing that

reading by one of the chief sponsors of the measure which

cannot be explained away. And this view is endorsed in

the recent Water Quality Act of 1987 which assumes, that

a citizen suit properly might be maintained solely to as-

sess civil penalties in respect of past violations.

D

Implementation of the objectives of the Act is best served

by the construction of Section 505 espoused by both courts

below. A “private Attorney General,” whose role is to

step in when governmental officials default, ought to have

the same right of action. The Act would too easily be

frustrated if suit were barred whenever the violator,

forewarned by the required notice, temporarily desisted.

And delay in compliance would be rewa.ded—not dis-

couraged—if past violations were automatically excused,

provided they ceased before a citizen suit is filed. No.

can it be right to defeat jurisdiction merely because, as

here, the suit followed the notice by six weeks more than

the statute requires.

7

E

Our construction of Section 505 does not invite a deluge

of needless lawsuits. The unavailability of compensatory

damages and the exposure of the plaintiff to an assess-

ment of the defendant’s costs and attorney fees both

deter frivolous litigation. At all events, in recently re-

viewing actual experience, the Congress has declared itself

well satisfied with the result.

ARGUMENT

Trimmed of frills and curlicues,? petitioner’s argument

comes down to harping on Congress’ use of the present

tense when referring to a potential defendant “in viola-

tion” of the Clean Water Act against whom a citizen suit

may be filed. The immediate provision, it is repeatedly

stressed, only permits a citizen to “commence a civil ac-

tion ... against any person . . . who is alleged to be in

violation . . . of an effluent standard or limitation under

[the] Act.” Sec. 505(a) (1), 33 U.S.C. 1365(a) (1) (em-

phasis supplied). But the question for the Court is

whether the underlined language is so unequivocal, so un-

ambiguously clear, so obviously single-minded, that it

forbids looking further to discover whether Congress

really meant to bar any citizen suit filed after a violator

has halted his excessive discharges, no matter how fresh

the most recent violations, how long they persisted, and

how likely they would be resumed once the action was

dismissed. Is the text so plain that we cannot notice the

statutory context and the wording of companion provi-

sions, cannot resort to legislative history, and cannot even

apply the test of common sense?

* The plethora of small points and “asides” in petitioner’s brief

tends to deflect the reader from the central issue. In the interest

of clarity, we have mostly resisted the temptation of answering

petitioner by following it down every byway, and have attempted to

stay on the main road. But our silence on any point ought not be

read as acquiescence.

8

A. THE PLAIN MEANING DOCTRINE IS (NAPPO-

SITE HERE

1. This is not that rare case—assuming the text alone

should ever be the exclusive guide to meaning. See Train

v. Colorado Public Interest Research Group, 426 U.S. 1,

9-11, 23-24 (1976). The less crabbed reading of the citi-

zen suit provision condoned by both courts below involves

no clash with the statutory language, no contradiction,

no disregard of engrossed words or smuggling in of addi-

tional ones. At worst, the construction we urge taxes

Congress with a debatable lapse of syntactical precision

in using one tense as shorthand for both past and pres-

ent. Given the size of our statute book, there is much

to be said for taking such a minor liberty in the service

of economy. But, even if we are dealing with a careless

accident, the reality is that common folk, including law-

yers and politicians, mix and mistake their tenses much

too often to give loose usage of this kind critical signifi-

cance.* It would ill serve the framers of the law to ig-

nore their intent because we were constrained to pretend

they were always punctilious grammarians.

2. Indeed, petitioner’s own ambivalence about the reach

of the citizen suit provision makes our point in a most tell-

ing way. One can but wonder why it took petitioner 11

months after the filing of suit to invoke the present tense

of Section 505 as a ground for challenging the court’s

* It is, for instance, a familiar convention to recount past events

in the present tense (“I enter the intersection first; he goes right

past the stop sign; he smashes into my car.”) Lawyers easily lapse

into the present when reciting the facts of a decided case—or the

facts of the case on trial. And politicians commonly do likewise

when referring to the stand of their opponent, spoken or written

some days or months earlier (“He says he will reduce your taxes,

while promising you more government benefits of every kind!”).

Legislation is not uniquely exempt from the same habit. It is

enough to note that most of the Criminal Code, although obviously

addressed to past occurrences, is written in the present tense. See

18 U.S.C. 32-2512.

9

jurisdiction. (Complaint filed June 15, 1984, J.A. 1, Pet.

App. 79a; Motion to Dismiss filed May 16, 1985, J.A. 5,

69). In the interim, there had been very active proceedings

(see J.A. 1-5), including a summary judgment declaring

petitioner liable (J.A. 56-58, 59-60), an amendment of

that judgment .(J.A. 61-62), extensive discovery, the

preparation of a detailed Stipulation of facts (Pet. App.

85a-96a, R. 15-29), and a trial (R. 30-242; see J.A.

63-68), all accompanied by elaborate briefing. It seems

fair to conclude that the meaning of the words in Section

505 was not then thought so “plain” as is now claimed.

Equally revealing, however, is petitioner’s present

stand. In the Court of Appeals, a more robust position

was asserted. See Brief of Defendant-Appellant 11-14.

But, in this Court, petitioner and its many friends ulti-

mately agree that the statutory text is not to be read

with absolute literalness. Although the present tense of

Section 505 continues to be the mainstay of the argument

on that side, no one now will be heard to espouse a con-

struction of the citizen suit provision that requires proof,

or even a bona fide allegation, that the defendant was

actively violating his permit on the day the suit was filed.

Pet. Br. 16-18, 29 n.30, 39-40 n.51; Br. A.C. of Chamber

of Commerce of the United States, et al. 10, 18-20; Br. A.C.

of Connecticut Business and Industry Association 53-59,

61; Br. A.C. of Consolidated Rail Corporation, et al.

11-13; Br. A.C. of Mid-Atlantic Legal Foundation, Inc.,

et al. 1, 5-6.4 This is likewise the view of the First Cir-

cuit. Pawtuxent Cove Marina, Inc. v. Ciba-Geigy Corp.,

807 F.2d 1089, 1093-1094 (1st Cir. 1986), petition for

*Two amici do not address the question presented at all, but,

instead, advance Separation of Powers arguments against any

reading of Section 505—+contentions not before the Court. See

Brief A.C. of Bethlehem Steel Corporation, et al. 3-4, 7 n.7; Br.

A.C. of Rollins Environmental Services (N.J.) 2 and nn.2 and 3, 3-6.

The full answer to these arguments was given some 45 years ago in

United States ex rel. Marcus v. Hess, 317 U.S. 537, 546-548 (1943).

10

cert. filed, No. 86-1562 (Mar. 17, 1987). And, if we

accept Judge Williams’ opinion, the same reluctance to

be too literal prevails in the Fifth Circuit. See Hamker

v. Diamond Shamrock Chemical Co., 756 F.2d 392, 399

(5th Cir. 1985) (concurring opinion). The upshot is a

variegated menu revealing interesting differences among

our opponents as to what being “in violation” does mean.

Compare, e.g., Br. A.C. of Chamber of Commerce of the

United States, et al. 17-19 (endorsing First Circuit’s

focus on prospect of future violations) with Br. A.C. of

Consolidated Rail Corporation, et al. 11 (apparently re-

jecting that test).

We need not detail these disagreements here. What is

significant is the fact that, while invoking the “plain

“meaning” rule, everyone finds it necessary to escape from

the strict grammar of the text and no two proponents of

reversal agree on exactly what new meaning is to be given

to the statutory language. Petitioner and its friends

(unlike the First Circuit) also effectively delete “alleged”

from Section 505. E.g., Pet. Br. 37-41. We, of course,

share the view that one must go beyond the immediate

words to learn the intent of Congress. For our part, how-

ever, we submit that once the blinkers are removed and

we are free to look to the side, and behind, the correct-

ness of the decision below is quickly revealed.

5 We assume Judge Williams, as a member of the panel and a

signatory of the court’s opinion, is best placed to say that the court

was not insisting on proof of an active permit violation occurring

on the very day of filing. It is noteworthy, however, that some

district judges within the Circuit apparently have read the Hamker

decision more literally as requiring such proof. See, e.g., Sierra

Club v. Copolymer Rubber and Chemical Corp., 621 F. Supp. 1013,

1015 (M.D. La. 1985), appeal pending, No. 85-3763 (5th Cir.).

Even in the Fifth Circuit, however, different readings of Hamker

appear to be entertained. See, e.g., Sierra Club v. Kerr-McGee

Corp., 23 Env’t Rep. Cases (BNA) 1685, 168.-1690 (W.D. La. 1985).

11

B. THE STATUTORY CONTEXT SUGGESTS OUR

CONSTRUCTION OF SECTION 505

1. The first thing that strikes the eye when it is al-

lowed to get past the words of Section 505(a) (1), quoted

above, is that the citizen suit provision itself explicitly

authorizes the assessment of civil penalties in such a pri-

vate action. Sec. 505(a), 33 U.S.C. 1865(a), last clause.

See Middlesex County Sewerage Authority v. Sea Clam-

mers Ass’n, 453 U.S. 1, 14 n.25 (1981).° A layman

might think this would end the debate. But lawyers do

not so readily give up; the suggestion, as we understand

it, is that civil penalties for past violations may be or-

dered in a citizen suit only if the defendant was engaged

in an “on-going violation” of the Act when the action

was filed.

One may well ask what sense that makes. It might

have been plausible (albeit unrealistic) to restrict all

civil enforcement of the Act to seeking prospective—in-

junctive—relief only. So, also, some might think it “in-

appropriate” for a non-governmental plaintiff to be pro-

voking an award of penalties that are paid into the

national Treasury.’ What is not easy to understand is

why a private complainant should be entitled to seek an

order for penalties in respect of past events if violations

are continuing when the svit is filed, but not otherwise.

® The cited note of course qualifies the earlier statement in the

Court’s opinion that the citizer suit provision of the Clean Water

Act “authorizes only prospective relief.” 453 U.S. at 6. At all

events, there was no issue in Sea Clammers as to what relief was

available under Section 505. The notice requirement of that provi-

sion having been ignored, all the claims were made under other

theories, on the argument that the citizen suit provision of the Act

did not pre-empt or supplant all other private rights of action. See

453 U.S. at 5 and n.6, 9-11.

? This may have been the view indulged at the time of the passage

of the Clean Air Act, which does not provide for the recovery of

_ Civil penalties in private litigation. 42 U.S.C. 7604. See p. 17, infra.

12

There is certainly no logic in such a scheme: whether

to penalize or forgive the sins of the past ought not be

made to depend entirely upon a present fact or a future

prediction, but, rather—as in government litigation—on

the gravity and persistence of the violations and any

“unjust enrichment” resulting from non-compliance.

Nor is that all. To restrict civil penalties to the

atypical case in which the polluter’s continuing viola-

tions justify an injunction is to provide the sanction

when it is least needed and to withhold it when the

salutary effect would be greatest. It must be deemed un-

likely that Congress pointedly added the weapon of civil

penalties in citizen suits, but then confined its use to

situations that were adequately dealt with by issuing

an injunction, whose disobedience could be punished un-

der the contempt power.

2. We are confirmed in the view that no such unusual

result was intended when we consult other provisions of

the Clean Water Act, notably those dealing with govern-

mental enforcement actions. Here, also, the present tense

is used: the EPA Administrator may initiate civil pro-

ceedings if he “finds that any person is in violation” of

the Act. Secs. 309(a)(1) and (3), 309(b), 33 U.S.C.

1319(a) (1) and (3), 13819(b) (emphasis supplied). But,

in this context, it is all but conceded that we ought not

read the provision literally as foreclosing suit because

excessive discharges did not occur on the day the “‘find-

ing’ was recorded or the action was filed.* Indeed, this

Court has effectively held that the government may col-

lect civil penalties for past violations when compliance

8 This was made plain by the Senate Conferees in reporting the

outcome of the House-Senate Conference (118 Cong. Rec. 33697

(1972) (emphasis supplied) ) :

“It is expected, of course, that upon receipt of information giv-

ing reason to believe that a violation has occurred, {the Admin-

istrator] has an affirmative duty to take steps necessary to

determine whether a violation has occurred... .”

13

has been achieved and injunctive relief accordingly is

not sought. Tull v. United States, No. 85-1259, slip op.

12 (April 28, 1987). Yet, if that is so, why should com-

parable language be read differently in the citizen suit

provision?

It is no answer to say that there are differences be-

tween governmental and private proceedings, and that

the latter should not duplicate the former. To be sure,

the statute draws a distinction, but it is no more than

to require a waiting period for a citizen, with notice to

both federal and State authorities, and to preclude a new

suit if either government is already “diligently prosecut-

ing a civil or criminal prosecution” to the same end.

Sec. 505(b) (1), 33 U.S.C. 1865(b)(1). Even then, how-

ever, the citizen may intervene of right in the public

action. Sec. 505(b) (1) (B), 33 U.S.C. 1365(b) (1) (B).

It hardly makes sense to accord a private citizen the

right to sue as intervenor but not as sole piaintiff in

respect of past violations.

What is more, in respect of civi! penaliies, the same

provision (Section 309(d), 33 U.S.C. 1819(d)) governs

both public and private suits and it would be strange

to give it a different scope depending on the status of

the plaintiff. The fact is that, criminal sanctions aside,

there is no difference in the relief available in private

and governmental suits. Compare Secs. 505(a) and (d),

33 U.S.C. 1365(a) and (d), with Secs. 309(b) and (d),

33 U.S.C. 1319(b)} and (d). Nor is this surprising,

especially as it relates to civil penalties. Exposure to

such penalties—unlike the prospect of ultimate injunc-

tive relief—is a powerful deterrent to violations by the

prospective defendant, and the actual assessment of pen-

alties against him will deter others. Moreover, when

time is of the essence—as is the case with the Clean

Water Act—civil penalties are the only effective weapon

for overcoming what would otherwise be the natural in-

clination of a discharger to postpone expenditures neces-

14

sary to achieving compliance and to enjoy an interim

advantage over law-abiding competitors. See EPA Civil

Penalty Policy, 41 Env. Rptr. (BNA) (Fed. Laws) 2991,

2992-2993, 2996-2999 (1984). Given this critical impor-

tance of civil penalties in the present context, one would

expect the weapon to be equally available in a citizen

suit—whose primary function, after all, is to substitute

for a government action that should have been initiated

but, for whatever reason, was not. And if (as is the

fact) the government can sue for penalties only, so should

the private alter ego.

3. At first blush, one might read the requirement of

60 days’ prior notice to the violator in the citizen suit

provision as restricting judicial intervention to those in-

tractable cases in which the polluter refuses to comply

even after warning and, accordingly, is still actively vio-

lating the Act when the action is filed. See Sec. 505(b)

(1) (A), 33 U.S.C. 1365(b) (1)(A). The problem with

that line of reasoning is that we know the Administra-

tor may sue for penalties only, and is free to initiate

court proceedings with no prior notice whatever. See

Sees. 309(a) (1) and (3), 309(b), 33 U.S.C. 1319(a) (1)

and (3), 1319(b). That being so, it would be quite ex-

traordinary to give a violator two months to bring him-

self into compliance and avoid legal proceedings alto-

gether whenever the government defaulted and a private

citizen was filling the void.

On reflection, it is clear that the notice requirement

in Section 505 is for the purpose of affording federal

and State authorities an opportunity to act, not to offer

the violator a chance of escaping the penalties of the law.

He is merly an incidental beneficiary of the notice rule,

presumably included only because it seemed right to

inform him that he was being reported to the authori-

ties as a lawbreaker.

15

C. THE LEGISLATIVE HISTORY OF THE ACT CON-

FIRMS OUR CONSTRUCTION OF SECTION 505

1. Given the express terms of the citizen suit provi-

sion, we make no point of the fact that the relevant com-

mittee reports refer to civil penalties as available in pri-

vate actions. See H.R. Rep. No. 911, 92nd Cong., 2nd

Sess. 1383 (1972); S. Rep. No. 414, 92nd Cong., 1st Sess.

79 (1971). But it is not without significance that nothing

in the reports—or elsewhere—expressly or implicitly re-

stricts a penalty award to citizen suits filed while the

violation is ongoing. The short-hand characterization of

such suits as “abatement” actions (e.g., S. Rep. No. 414,

supra, at 79-81) merely reflects the reality that, most typi-

cally, a private action will be provoked by the apparently

persistent violator. This is a far cry from the statement

that private actions will only lie against dischargers still

actively violating the Act on the day of filing. After all,

a prime purpose of civil penalties is to prevent future

violations by deterring these who are, for the moment,

in compliance—whether the defendant himself or others.

But the matter is not left to conjecture. We have al-

ready noted the express statement of the Senate Con-

ferees that a government suit may focus on past be-

havior. Note 8, supra. And we have submitted that it

must equally be so in citizen suits since, examining the

statutory text, it does not appear that a private action

is more circumscribed as to the conduct that can be

reached. Pp. 13-14, supra. This is coniizmed when we re-

turn to the legislative history. The Senate Report (S.

Rep. No. 414, supra, at 80) explains:

The standards for which enforcement would be sought

either under administrative enforcement or through

citizen enforcement procedures are the same.*

*It does not matter whether the expression “administrative en-

forcement” here refers to non-judicial proceedings or to court action

by the EPA Administrator. Under the Act, the Administrator is

16

So, also, the Report impliedly repudiates the notion that

the 60-day notice requirement for citizen suits was

meant to offer the violator a ready escape from litiga-

tion. The stated objective is merely to “encourage and

provide for agency enforcement.” S. Rep. No. 414,

supra, at 79.

2. There is, indeed, incontrovertible legislative evi-

dence specifically espousing our construction of the citi-

zen suit provision. As the courts below stressed, Senator

Muskie, one of the principal authors and sponsors of the

bill, expressly stated that view (118 Cong. Rec. 33700

(1972) (emphasis supplied) ) :

This 60-day provision was not intended, however, to

cut off the right of action a citizen may have with

respect to violations that took place 60 days earlier

but which may not have been continuous. As in the

original Senate bill, a citizen has the 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 a continuous one, or an occasional or sporadic one.

And elsewhere (118 Cong. Rec. 33693 (1972)), the same

Senator said citizen suits—no less than governmental

enforcement actions—would lie “against both continuous

and intermittent violations.”

It simply will not do to ignore these statements as

“stray remarks” by “one legislator.” Pet. Br. 28. The

principal quotation above is derived from a written com-

mentary, presumably a well considered and authoritative

summary of the legislation in its final form by its “pri-

mary author” (E.J. duPont de Nemours & Co. v. Train,

430 U.S. 112, 129 (1977); Train v. Colorado Public In-

free to file a civil lawsuit whenever he is authorized to issue a

compliance order. Section 309(b), 33 U.S.C. 1319(b). See also

Section 309(a)(1) and (3), 33 U.S.C. 1319(a) (1) and (3).

17

terest Research Group, 426 U.S. at 14)."° Nor can Sen-

ator Muskie’s unambiguous words be diminished by look-

ing to the comments of another Senator speaking to other

legislation, of two years before, that did not authorize

penalty awards in citizen suits. Pet. Br. 30. See 42

U.S.C. 7604 (Clean Air Act). The Clean Water Act

quite deliberately modified its model in this respect. S.

Rep. No. 414, supra, at 79; H.R. Rep. No. 911, supra,

at 133.

In sum, the contemporary legislative history fully con-

firms what the textual evidence and considerations of

legislative policy already indicated: that a citizen may

maintain his suit against a violator without alleging,

much less proving, that excessive discharges were con-

tinuing at the time of filing.

3. What is more, Congress subsequently endorsed our

reading of the citizen suit provision when it recently

revisited and amended the Act. Section 314 of the Water

Quality Act of 1987, Pub. L. 100-4, adds a new provision

to Section 309 of the Clean Water Act permitting the

administrative assessment of civil penalties which ex-

pressly uses the past tense: “Whenever... the Ad-

ministrator [of EPA or the Secretary of the Army]

finds that any person has violated . . . any permit con-

dition or limitation.” See. 309(g)(1)(A) and (B), as

added in 1987, 33 U.S.C. 1319(g)(1)(A) and (B) (em-

phasis supplied). This new authority necessarily focuses

on past violations, supplementing, as it does, the Ad-

ministrator’s pre-existing authority to issue compliance

orders under Section 309(a) (1) of the Act. See S. Rep.

No. 50, 99th Cong., 1st Sess. 26 (1985); H.R. Rep. No.

1004, 99th Cong., 2d Sess. 132-133, 135-136, 138-139

Petitioner notes that this commentary was not published in

the Congressional Record until after the Senate vote. But it is

entirely possible that the written summary was available to Sena-

tors before publication. At all events, we may accept the com-

mentary as accurately reflecting the view of the Senate conferees.

18

(1986). Yet, the new subsection explicitly contemplates

that a citizen suit may already have been filed to assess

the same penalty and, in that event, allows it to proceed.

Sec. 309(g) (6) (B), as added in 1987, 33 U.S.C. 1319

(g) (6) (B). So, also, where the administrative penalty

action is first begun, a citizen suit to the same end is

precluded, but only insofar as it reaches the identical

past violations. Sec. 309(g)(6)(A), as added in 1987,

33 U.S.C. 1319(g) (6) (A).™

There is here a strong indication that the Congress

believed existing law authorized citizen suits addressing

past violations that no longer required injunctive reme-

dies. Although the new provision dealing with adminis-

trative penalties employs the past tense in describing the

violation, it was evidently deemed unnecessary to amend

either Section 309(a) or (b) or Section 505(a)(1) to

conform. Nor can this have been mere oversight. The

Water Quality Act was elaborately considered over two

years before ultimate enactment, affording ample oppor-

tunity for noticing and correcting any deficiency. The

natural inference is that Congress saw the preserit tense

of Sections 309 and 505 as no limitation on penalty ac-

tions in respect of past violations. In the circumstances,

this is a reliable guide to the original intent of the Clean

Water Act. Cf. Bob Jones University v. United States,

461 U.S. 574, 599-602 (1983), and cases cited at 601.

D. OUR CONSTRUCTION OF SECTION 505 BEST IM-

PLEMENTS THE CONGRESSIONAL OBJECTIVES

Needless to say, the Court cannot rewrite a statute

because it believes giving the law a broader scope would

be better policy. On the other hand, it must be right to

11 The Senate Report (No. 50, supra, at 28) explicitly states that

the preclusive effect of an administrative penalty action does not

apply to a citizen suit “for a past violation of another pollutant

parameter (even one resulting from the same discharge which is

the subject of the administrative civil penalty proceeding) .”

19

resolve any genuine ambiguity by ascribing to Congress

the intent to achieve the result that apparently best

serves the public interest. Surely, no one can fault us

for indulging a presumption in favor of our legislators

as wise and public-spirited statesmen. It is therefore

appropriate to test the conflicting interpretations of the

statutory provision against the presumed purposes of

the legislation.

1. There is no mystery about the objective of the

Clean Water Act amendments of 1972 wholly to elimi-

nate the pollution of navigable waters within a dozen

years, and, to that end, to enlist federal, state and pri-

vate incentives. See Sec. 101(a)(1), 33 U.S.C. 1251

(a) (1); Train v. City of New York, 420 U.S. 35, 37,

45-46 and n.10 (1975); EPA v. State Water Resources

Control Board, 426 U.S. 200, 203-209 (1976): EJ. du-

Pont de Nemours and Co. v. Train, 430 U.S. at 116, 132-

133; Milwaukee v. Illinois, 451 U.S. 304, 317, 319

(1981); Sea Clammers, 453 U.S. at 13-14; Interna-

tional Paper Co. v. Ouellette, No. 85-1233, slip op. 6, 7,

15 n.18 (Jan. 21, 1987). Not unimportant in this com-

prehensive scheme is the provision for citizen suits, whose

function is not to compensate adversely affected persons,

but to enlist them as “private Attorneys General” in aid

of government plaintiffs or in their place, should they de-

fault. Sea Clammers, 453 U.S. at 15-17. See also id. at

14 n.23. Thus, it seems obvious a private plaintiff, if he

is to be an effective substitute, must have the same liti-

gating weapons as the government itself. Nor ought we

assume that the launcher for the most important of the

weapons—civil penalties—was rendered all but inopera-

tive before being turned over to the citizen. See pp. 12,

13-14, supra.

2. There is, moreover, a very practical objection to

petitioner’s reading—which cannot have escaped the eye

of Congress. It is this: in most cases, the fact of exces-

20

sive discharges is known to the public only through the

required discharge monitoring reports (DMRs) ; but the

underlying water samplings are usually at least days,

and may be weeks or even months, apart and the reports

are typically filed a month or more after the sampling

event. See S. Rep. No. 414, supra, at 11. In the circum-

stances, it would be most odd to require the plaintiff to

allege what he cannot yet know, the present continuation

of previous excessive discharges revealed by the most

recent reports, which may be quite stale. In fact, be-

cause of the retrospective nature of monitoring and of

calculating the monthly average, the operator himself is

often uncertain whether he has ceased excessive dis-

charges until the last samplings are taken, after a citizen

suit has been filed.

Nor is that all. Suppose the violator, forewarned by

a citizen’s statutory notice, temporarily desists, albeit

with every intention of resuming his excessive discharges

once the threat of litigation has receded.” And let us

further suppose that the temporary cessation of polluting

activity is sufficiently made plain that the potential.citizen

plaintiff cannot in good faith allege a presently continu-

ing violation. Is this simple scenario sufficient to evade

the Clean Water Act when governmental authorities stand

aside? * In legislation that takes itself seriously, a nega-

12 It might be suggested that the potential citizen plaintiff need

only remain poised to file this suit as soon as excessive discharges

resume. But, because the DMRs always relate past violations, the

current status can never be known. Moreover, the effectiveness of the

statutory notice may lapse after a time and a fresh 60-day notice

might be then required before suit. Cf. Section 309(g) (6) (B) (ii)

of the Act added by Sec. 314 of the Water Quality Act of 1987, Pub.

L. 100-4 (limiting the effectiveness of a notice for some purposes

to 120 days). Indeed, we assume petitioner would say that the initial

notice ceases to form a predicate for suit as soon as excessive

discharges are halted.

18 The problem is compounded if, as petitioner sometimes inti-

mates, even the federal Administrator is barred from suing while

21

tive answer seems compelled, as Judge Williams sug-

gested, concurring in Hamker v. Diamond Shamrock

Chemical Co., supra, 756 F.2d at 399. Yet, petitioner’s

construction of Section 505 forbids a citizen suit in these

circumstances.

We address in a moment the concerns expressed about

the potential abuses presented by unchecked citizen suits.

Pp. 22-26, infra. But we must accept, at the outset, that

the provision was intended to have a significant deterrent

bite. The balance is well struck, it seems to us, by per-

mitting the assessment of civil penalties for past viola-

tions in appropriate circumstances. Because the award

is paid into the federal Treasury and is, in any event,

Ciscretionary with the court, it affords no undue incen-

tive to the plaintiff. Yet, at the same time, the prospect

of a substantial penalty will deter violations and encour-

age prompt curative measures, and the actual assessment

of penalties will goad other dischargers into compliance.

There is no reason to suppose Congress would not have

intended such a salutary result.

3. As it happens, the present case tellingly illustrates

the appropriateness of our reading of Section 505. As we

have detailed in the Statement (pp. 3-4, supra), peti-

tioner was a serious multiple violator over many years.

To deal with one category of pollutants, petitioner very

belatedly made relatively inexpensive improvements to

its treatment system at the repeated insistence of the

State authorities. J.A. 111 and n.25. Nevertheless,

grossly excessive discharges had persisted without inter-

ruption for some six months thereafter when respondent

served its statutory notice on February 29, 1984 (J.A.

116-117, R. 317-323). And in four of those months, there

were other violations as well. Jbid. Nor did even the

there is no present excessive discharge. See Pet. Br. 23-24 (“Even

assuming arguendo that EPA can seek penalties for purely past

violations . . .”).

warning of a forthcoming lawsuit provoke immediate

compliance. The monthly average permitted discharges

of TKN were exceeded in March, April, and May—not

to mention three violations of the much more generous

one-day maximum, twice in Apri: and once in May. /bid.

Petitioner, did not cease excessive discharges until May 16,

1984, just a month before this suit was filed.

Such a record hardly commends itself for a ruling of

total exemption from liability simply because active viola-

tions had stopped—whether temporarily or permanently

only time would tell—on the day of filing. Indeed, the

irony is that under petitioner’s submission the present

suit would lie if it had been instituted a month or so

earlier, as the 60-day rule allowed. Thus, according to

this argument, the district court’s jurisdiction failed only

because respondents waited a little longer than the law

required before filing their action. We cannot lightly

ascribe such a senseless result to a rational Congress.

E. OUR CONSTRUCTION OF SECTION 505 CREATES

NO RISK OF UNFAIRNESS OR ABUSE OF THE

COURTS

Throughout this case, and others like it, there have

been half-spoken, and wholly unsupported, suggestions

that the “broad” reading of the citizen suit espoused by

the courts below would work unfairness to industry and

place an undue burden on the federal courts. We readily

agree that the pressures on dischargers are measurably

greater because of the availability of private lawsuits.

If it were otherwise, there would be no point in permitting

such actions. And, obviously enough, these suits do, in

some degree, increase the volume of federal court litiga-

tion under the Clean Water Act. Again, however, it is

™ The statutory notice having been served on the last day of

February 1984, the 60-day period elapsed at the end of April. Had

the suit been filed then or any time in the following two weeks,

petitioner would have been “caught red-handed.”

23

plain Congress determined that this was an acceptable

cost, and the Court cannot be asked to defeat the legisla-

tive scheme in the name of protecting overburdened

judges. But, it need hardiy te said, there are limits. It

would be difficult to defend a construction of Section 505

that produced a deluge of essentially pointless litigation.

We ought not suppose Congress is so callous toward un-

just harassment or so heedless of the problems of a co-

ordinate branch.

1. In the present context, no such risk is presented.

There is no real incentive for the filing ef a citizen suit

against a one-time polluter who has long since mended

his ways. If deterrence of future violations is unneces-

sary, the private plaintiff has little or nothing to gain

by seeking an award of statutory penalties that will not

come to him. There is, as this Court “as firmly held, no

possibility of obtaining compensation for past injury

through the recovery of damages, whether under the Act

or federal common law. Sea Clammers, supra.** And even

the expenses of litigation can be refused if the court con-

cludes that the action served no purpose; indeed, the in-

itiator of merely harassing litigation can be required to

pay the costs and attorney fees incurred by the defendant,

as well as his own. See Ruckelshaus v. Sierra Club, 463

U.S. 680, 692-693 and n.13 (1983); id. at 707 (Stevens,

J., dissenting) .

Nor need we rely entirely on the self-interest of poten-

tial plaintiffs. The courts are not helpless to deal with

15 Settlement payments earmarked for specific environmental! pur-

poses are no exception. These are simply contributions to particu-

larized public programs, not compensation for private injury. In

specified circumstances, such “alternative payments” continue to be

encouraged by EPA (see EPA Civil Penalty Policy, supra, at 3002-

3003), and, at all events, have been endorsed by Congress as fur-

thering the objectives of the Clean Water Act. H.R. Rep. No. 1004,

supra, at 139.

24

silly or vindictive lawsuits. Proof of an excessive dis-

charge in the past does not require the imposition of

a penalty: although the violator is “subject to” such an

assessment (Sec. 309(d), 33 U.S.C. 1319(d)), it is for

the court to decide, in each case, whether an award is

“appropriate.” Sec. 505(a), 33 U.S.C. 1365(a). The

court may well determine against a penalty if the viola-

tion is isolated or if effective corrective measures were

promptls» taken some time ago.

Moreover, dismissal of unnecessary lawsuits is not the

only deterrent. As we have just noted, the court may

also assess all the costs and legal expenses of vexatious

litigation against the plaintiff. Indeed, Congress believed

this prospect would keep the balance right. See Ruckels-

haus v. Sierra Club, supra; S. Rep. No. 414, supra, at

81.%¢

Finally, it ought to be said that the available evidence

does not remotely suppert the “floodgates” argument sug-

gested. It is not irrelevant that the construction of Sec-

tion 505 espoused by the courts below has also been

adopted by most of the lower federal courts on the front

line, in the best position to notice unfairness and to feel

any excessive burden.’’ Yet, there has been no unman-

16 Contrary to the contentions in some of the briefs, citizen

plaintiffs are not so irresponsible as to initiate actions after merely

“leafing through” the DMRs filed by permittees (Pet. Br. 44), or

to ignore the factors taken into account by the government when

bringing suit. See Br. A.C. of Rollins Environmental Services

(N.J.) 13-15. As an example, the present case resulted from a

review by respondents of roughly a hundred major dischargers on

Chesapeake Bay. Serious violators were pinpointed, and their com-

pliance records and facilities discussed with state officials. Six

notice letters were sent resulting in judicial or administrative en-

forcement actions either by respondents or the government, or both,

in all six cases: See J.A. 53-54.

17 See Friends of the Earth v. Archer Daniels Midland Co., 24

Env’t Rep. Cases (BNA) 1993, 1995-1996 (N.D.N.Y. 1986) ; Locust

25

ageable volume of private enforcement actions. And,

at all events, in a recent assessment of citizen suits un-

der the Act, Congress had declared itself well satisfied

with the result. See S Rep. No. 50, supra, at 28. See

also 131 Cong. Ree. S-12026 (daily ed. Sept. 24, 1985).

The proof of the pudding is in the eating.

Lane v. Swatara Township Authority, 636 F. Supp. 534, 539 (M.D.

Pa. 1986); State of Alabama ex rel. Graddick v. Veterans Admin-

istration, 648 F. Supp. 1208, 1211 (M.D. Ala. 1986) ; Student Public

Interest Research Group v. Jersey Central Power & Light Co., 642

F. Supp. 103, 107 (D.N.J. 1986); Student Public Interest Research

Group v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074, 1083-

1084 (D.N.J. 1986); Connecticut Fund for the Environment and

NRDC v. Job Plating Co., 623 F. Supp. 207, 213-214 (D. Conn.

1985); Fishel v. Westinghouse Electric Corp., 617 F. Supp. 1531,

1540-1541 (M.D. Pa. 1985); Sierra Club v. Hanna Furnace Corp.,

636 F. Supp. 527, 529-530 (W.D.N.Y. 1985); Sierra Club v.

Simkins Industries, Inc., 617 F. Supp. 1120, 1126-1127, 1131-1132

(D. Md. 1985); Sierra Club and NRDC v. C.G. Manufacturing Co.,

Inc., 638 F. Supp. 492, 494 (D. Mass. 1985); Student Public Inter-

est Research Group v. American Cyanamid Co., 23 Env’t Rep. Cases

(BNA) 2044, 2049 (D.N.J. 1985); Student Public Interest Group

v. AT&T Bell Laboratories, 617 F. Supp. 1190, 1194-1199 (D.N_J.

1985); Student Public Interest Research Group v. Georgia Pacific

Corp., 615 F. Supp. 1419, 1425-1426 (D.N.J. 1985); Student Public

Interest Research Group v. Monsanto Co., 600 F. Supp. 1474, 1476-

1477 (D.N.J. 1985); Student Public Interest Research Group v.

National Starch and Chemical Corp., 23 Env’t Rep. Cases (BNA)

1982, 1984 (D.N.J. 1985); Student Public Interest Research Group

v. Tenneco Polymers, 602 F. Supp. 1394, 1399 (D.N.J. 1985) ;

Atlantic States Legal Foundation v. Al Tech Specialty Steel Corp.,

635 F. Supp. 284, 286-287 (N.D.N.Y. 1984); Friends of the Earth

v. Facet Enterprises, Inc., 618 F. Supp. 532, 535 (W.D.N.Y. 1984) ;

Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 853-854

(N.D.N.Y. 1984); Sierra Club and NRDC v. Raytheon, 22 Env’t

Rep. Cases (BNA) 1050, 1053-1055 (D. Mass. 1984); Student Pub-

lic Interest Research Group v. Anchor Thread Co., 22 Env’t Rep.

Cases (BNA) 1150, 1154 (D.N.J. 1984).

18 To be sure, the number of citizen suits tends to increase when

government defaults. That is as it should be. Even so, however,

the actual volume of private actions in the past few years has been

relatively moderate.

26

2. The present case, as we have sufficiently detailed

(pp. 2-5, 21-22, supra), is much too egregious to support

a credible claim that petitioner has been the victim of

vexatious litigation. Although, as it turned out, active

violations had ceased a month before suit was filed, there

was then good cause to fear that excessive discharges

would continue in the future if petitioner were not re-

strained by injunction or deterred by an assessment of

penalties. This is enough to dispose of the case. But we

cannot join the United States in its submission that Sec-

tion 505 ought to be read as permitting citizen suits only

in like circumstances.”

For our part, we believe there is no warrant for im-

posing such a limitation, at least as a jurisdictional

matter. Thus, in the present case, we submit it does not

matter whether, on June 15, 1984, when the suit was

filed, respondents believed excessive discharges were still

occurring or, rather, had been halted in light of the 60-

day warning letter. Nor can we accept as dispositive the

presence or absence of a reasonable fear about the viola-

tions of the past continuing into the future, whether or

not they have stopped for the moment. That is, of

course, the primary test for the court in deciding

whether a permanent injunction is appropriate, and it

may also be an ingredient in fixing any penalty award.

But we cannot suppose an assessment of civil penalties

19 At this writing, we have not seen the brief for the United

States in this Court and therefore must rely on its submission

below. We assume the Government will, in effect, endorse the rule

announced by the First Circuit in the Pawtuzxet Cove case; supra,

and will argue, contrary to petitioner, that applying that decision

here requires affirmance. Although grateful for this support, so far

as it goes, we surmise that conflicting interests within the Govern-

ment have, once again, led to an unrealistic search for a “middle

ground.” Cf. International Paper v. Ouellette, supra, slip op. at

16 n.19.

27

is always wrong when future compliance is assured, for

that would unduly excuse, and effectively reward, delib-

erate delay in taking necessary corrective action until

a lawsuit was imminent—and thereby importantly re-

tard the achievement of the Congressional objective.

At all events, however, we submit these are questions of

remedy, not of jurisdiction. Cf. Weinberger v. Romero-

Barcelo, 456 U.S. 305 (1982).

Indeed, once we get beyond the prison of the present

tense in Section 505, there is no textual basis for requir-

ing, as a basis for jurisdiction, any particular belief

about future violations. As we read the provision, it

gives the district court jurisdiction to entertain a pri-

vate suit against an alleged violator of the Clean Water

Act, provided only a 60-day notice has been served and

neither government is diligently prosecuting a like ac-

tion. Whether the citizen suit will succeed is another

matter. In due course, it may become necessary for this

Court to give guidance as to the circumstances that

justify any remedial order, and, specifically, the assess-

ment of civil penalties. But this is surely not that case.

In this Court, at least, no argument is advanced that

a penalty order, or the amount of the award, was im-

proper if the district court had jurisdiction of the case.

Pet. Br. 7 n.8.% And this, we may add, was no im-

prudent concession.

20 We charitably overlook feeble attempts to complain about the

assessment without formally challenging it. E.g., Pet. Br. 33

n.42, 44.

28

CONCLUSION

For the reasons stated, the judgment of the court of

appeals affirming the decision of the district court should

be affirmed.

Respectfully submitted,

* Counsel of Record

May 1987

LouIs F. CLAIBORNE

WASHBURN AND KEMP, P.C.

144 Second Street

San Francisco, California 94188

(415) 543-8131

JETER M. WATSON *

ANN POWERS

Scott BURNS

CHESAPEAKE BAY FOUNDATION, INC.

Suite 815, Heritage Building

1001 East Main Street

Richmond, Virginia 23219

(804) 780-1392

JAMES THORNTON

NANCY MARKS

NATURAL RESOURCES DEFENSE

COUNCIL, INC.

122 East 42nd Street

New York, New York 10168

(212) 949-0049

Attorneys for Respondents