Amicus Curiae Brief — Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.
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Buprere Dow,
- Rik BD
WAY 87 per
DEEL SPANIOL, sm,
No. 86-473
Iu the Supreme Court of the United States
OCTOBER TERM, 1986
GWALTNEY OF SMITHFIELD, LTD., PETITIONER
v.
CHESAPEAKE Bay FOUNDATION, INC. AND
NATURAL RESOURCES DEFENSE COUNCIL
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING AFFIRMANCE
CHARLES | IED
Solicite General
THOMAS &. HOOKANO
Acting Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JEFFREY P. MINEBAR
Assiatant tothe Solicitor General
DAVID C. SHILTON
KAREN L. FLORINI
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 633-2217
—
QUESTION PRESENTED
Whether a district court must dismiss a Clean Water
Act citizen enforcement action against a defendant that
has continuously violated its discharge permit unless the
citizen demonstrates that the defendant has committed
discrete permit violations on or after the day the com-
plaint was filed.
(1)
TABLE OF CONTENTS
Argument:
Section 505 of the Clean Water Act authorizes
citizens to maintain a private enforcement action
against a company that repeatedly violates its dis-
charge permit even if the company commits no
discrete permit violations on or after the day the
Ee
A. The Clean Water Act gives EPA and the in-
dividual states primary responsibility for en-
suring effective enforcement of the Act’s
Rie Sere ereerem ......................................
B. Section 505 of the Clean Water Act authorizes
private citizens to bring civil enforcement ac-
tions against a person who is alleged to be in
violation of NPDFS permit requirements.
C. Respondents properly alleged that Gwaltney
was in violation of its NPDES discharge per-
LEE EEE
TABLE OF AUTHORITIES
Cases:
Allen v. Wright, 468 U.S. 787 (1984) —..000...
Amoco Production Co. v. Gambell, No. 85-1239
A
Bender v. Williamsport Area School District, No.
84-778 (Mar. 25, 1986) ........................................
(111)
10
10
14
28
21
IV
Cases—Continued : Page
City of Evansville v. Kentucky Liquid Recycling,
604 F.2d 1008 (7th Cir. 1979), cert. denied, 444
Se ne aeeeaemeeetnl 15, 18
City of Milwaukee vy. Illinois, 451 U.S. 304
ee 10
Connecticut Dep’t of Income Maintenance v. Heck-
ff RAST eee aoe 17
Consumer Product Safety Commission Vv. GTE
Sylvania Inc., 447 U.S. 102 (1980) 0000. 15
County of Los Angeles v. Davis, 440 U.S. 625
TUTTI ctnestciesininsindiastaa tneitinasememniamateaatintaieniadinass iitemniemiadins 27, 28
Davis v. Passman, 442 U.S. 228 (1979) 2.000000... 15, 23
EPA Vv. California ex rel. State Water Resources
Control Board, 426 U.S. 200 (1976) 0000000... 2-3
Hamker v. Diamond Shamrock Chemical Co., 756
F.2d 392 (5th Cir. 1985) —........00.000000..... 6, 11, 15, 20
International Paper Co. v. Ouellette, No. 85-1233
i Re ee Ce. 2,10, 11
Kelly v. Robinson, No. 85-1033 (Nov. 12, 1986)... 18
Linda R.S. v. Richard D., 410 U.S. 614 (1973)... 21
Lowe v. SEC, 472 U.S. 181 (1985) 0000000... 17
Middlesex County Sewerage Authority v. Na-
tional Sea Clammers Ass’n, 453 U.S. 1 (1981).. 11,14
Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp.,
807 F.2d 1089 (ist Cir. 1986) 0000. 15, 16, 20
Pilot Life Insurance Co. v. Dedeaux, No. 85-1043
a a ee eae 18
Reiter v. Sonotone Corp., 442 U.S. 33 (1979)........ 17
St. Paul Indemnity Co. v. Red Cab Co., 303 U.S.
A ee a Ae 23
Train Vv. Natural Resources Defense Council, Inc.,
es 26
Tull v. United Siates, No. 85-1259 (Apr. 28,
ED cntenneteeensatntensneel Resusiedntienenietineitininmsareene 21
United States v. James, No. 85-434 (July 2,
SEED. cxunumcsnsssnasieerniceninnenmnesdbnnaiaaiiialiitattiaatis 15
United States v. Naftalin, 441 U.S. 768 (1979)... 16
United States v. Oregon Medical State Society,
S43 U.S. SBS (UGGS) nnn... nnn nnn cccccccccccecccccccceeneeee ee 28
United States v. Parke Davis & Co., 362 U.S. 29
SUITED: iptudiastndsentisesendntenadtnaleladinseslicisiaiaibahiaiadaaisaeibbetedides 28
Vv
Cases—Continued : Page
United States v. Phospate Export Ass’n, 393 U.S.
| nn. 28
United States v. Turkette, 452 U.S. 576 (1981)... 15
United States v. W.T. Grant Co., 345 U.S. 629
— 27, 28, 29
Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc.,
ES yyyy——————————EEE 21
Vitek v. Jones, 445 U.S. 480 (1980) -....................... 28
Weinberger v. Romero-Barcelo, 456 U.S. 305
SN 28
Constitution, statutes and regulations:
U.S. Const. :
Art. II, §3 22
HTT sc eciicrinicnaricaniiiiisigiatinaiasincinianiiniinmmnpmanncnnnts 21, 28
Clean Air Act § 304, 42 U.S.C. 7604 , 18
Clean Water Act, 33 U.S.C. 1251 et seq. -................... 1
§ 101 (a), 33 U.S.C. 1251 (a) ......---..------------------ 2,18
§ 301(a), 38 U.S.C. 1811 (a) ...................---200000+- 2
tS 2 tS) |) 3
§ 309, 33 U.S.C. 1319 ee, 8, 9, 11, 21
§ 309 (a) (1), 33 U.S.C. 1319(a) (1) --.............. 11
§ 309 (a) (2), 33 U.S.C. 1319 (a) (2) —................ 11
§ 309 (a) (3), 33 U.S.C. 1319(a) (3) .................. 11, 20
§ 309 (a) (3)-(6), 33 U.S.C. 1319(a) (3)-(6).. 11
§ 309(a) (4)-(6), 33 U.S.C. 1319(a) (4)-(6).. 11
§ 309(b), 33 U.S.C. 1319(b) -...--..-.....------------ 11, 12, 20
§ 309(c), 83 U.S.C. 1819 (€) ..............-.-2--.0--ce-e--- 12
§ 309(d), 33 U.S.C. 1319(d) ...................-...--.-----. 12, 20
§ 309(g), 33 U.S.C. 1319 (g) .......----.------.----------- 12
§ 818, 3B U.B.C. 1828 ...-..--...neeeececeeeoenceennceeneeeee 1
OU 2,11
§ 402(a), 33 U.S.C. 1342 (a) ........----------------0--00-+- 2
§ 402 (a) (2), 33 U.S.C. 1342 (a) (2) ................... 3
§ 402(b), 33 U.S.C. 1342(b) ...............--.-...-------. 3
§ 402 (b) (7), 33 U.S.C. 1342 (b) (7)... 3
§ 402(c), 38 U.S.C. 1842 (e) ..................22--.--000-0+- 3
§ 402 (c) (3), 33 U.S.C. 1342(c) (3)... 3
vI
Constitution, statutes and regulation—Continued : Page
§ 505, 33 U.S.C. 1365 _................. 1, 3, 4, 5, 7, 14, 15, 16,
§ 505 (a), 33 U.S.C. 1365 (a) _....7, 15, 16,
§ 505 (a) (1), 33 U.S.C. 1365 (a) (1) eoevccosocoo0---- 3, 6, 8
§ 505 (b), 33 U.S.C. 1365 (b) 14
4
4
§ 505(b) (1) (A), 33 U.S.C. 1365(b) (1) (A).
§ 505(b) (1) (B), 33 U.S.C. 1365(b) (1) (B)..
§ 506(f), 38 U.S.C. 18665(f)................................. 3, 25
§ 506 (g), 88 U.S.C. 1865 (g)..............................-. 16
Resource Conservation and Recovery Act § 7002,
42 U.S.C. (& Supp. III) 6972 .............................. 19
Toxic Substances Control Act § 20, 15 U.S.C. 2619.. 19
‘ater Quality Act of 1987, Pub. L. No. 100-4,
Oe en 2,12
TN 12
101 Stat. 43 (§ 312) -........... sieshesiahenpeshdiibabatbabiaioaiiaids 12
NC 12
yxy sainicianens 12
KS sosasensnes 13
en 14
eT 21
A eee 21
a 21
Va. Code Ann. (1982):
a 4
§ 62.1-44.15 (8a) (ii) (Supp. 1986) 14
§ 62.1-44.15(8c) (Supp. 1986) —..... 14
EER A CT eS La 14
ans 14
40 C.F.R.:
Section 122.41 (h) (4) .....00-... ee. ae 3
TTT ALTA 18
Fed. R. of Civ. P.:
ee 15, 22
| Eee 20, 23, 29
SATII cicrinectensintinisanshinidaaimnsaemintnititeineeatimetins 20, 22
Miscellaneous : Page
118 Cong. Rec. (1972):
QO Se 17
1, BD cecnnssnsnsssssnssssnssnsnsessncmmmnesnnnnssesnessemassassvessees 16, 17
SIT csneiteeecenimianiihusinninapnaithainaiiassiniesdaandannaniaigantitie 17
Tc crrineteneieitnrneaaeaiseaetieniensetanniitinninmpmsmnmteatin 17
EPA Civil Penalty Policy [Federal Laws] Env’t
Rep. (BNA) 41:2991 (June 1, 1984) 0... 7
H.R. Rep. 92-911, 92d Cong., 2d Sess. (1972) ....... 13, 17
2A J. Moore & J. Lucas, Moore’s Federal Prac-
Ce 20, 22, 23
Senate Comm. on Environment and Public Works, .
93d Cong., Ist Sess., A Legislative History of
the Water Pollution Control Act Amendments
of 1972 (Comm. Print 1973) :
rts Uh nichiccetscaceenhaseeeiadielblatindeeiatienetantinata ieee 13, 16, 17
With: I cennencemmninnieneeenemne 17,19
S. Conf. Rep. 92-1236, 92d Cong., 2d Sess. (1972) .. 17
S. Rep. 92-414, 92d Cong., 2d Sess. (1971) -............. 17, 19
Iu 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
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING AFFIRMANCE
INTEREST OF THE UNITED STATES
The United States plays a lead role in enforcing the
Clean Water Act, 33 U.S.C. (& Supp. III) 1251 et seq.
(CWA). See CWA § 309, 33 U.S.C. 1319. It is also a
potential defendant in citizen enforcement actions against
federal facilities. See CWA § 313, 33 U.S.C. 1323; CWA
§ 505, 33 U.S.C. 1365. The present case, in which the
United States participated as amicus curiae in the court
of appeals, concerns the jurisdictional prerequisites for
a private suit brought to obtain compliance with the
Clean Water Act. Its resolution will have a direct and
substantial effect on systematic enforcement of the Act.
STATEMENT
The Clean Water Act permits private citizens to bring
civil actions in certain situations to enforce the Act’s
pollution control requirements. In this instance, respond-
(1)
2
ents Chesapeake Bay Foundation, Inc. and the Natural
Resources Defense Council, brought an action against
Gwaltney of Smithfield, Ltd., requesting the court to en-
join Gwaltney’s pollution discharges and to assess civil
penalties. The district court entered partial summary
judgment finding Gwaltney to have violated and to be in
violation of the Act and held a trial to determine an
appropriate remedy. Gwaltney then moved to dismiss the
action, arguing that the court lacked subject matter juris-
diction because Gwaltney had rot exceeded its discharge
permit limitations since the suit was filed. The district
court denied Gwaltney’s motion, assessed a $1.3 million
penalty, and ordered the company to provide respondents
with monthly discharge monitoring reports indicating
Gwaltney’s compliance status. The court of appeals
affirmed.
A. The Clean Water Act’s NPDES Program
The Clean Water Act creates a comprehensive program
“to restore and maintain the chemical, physical, and bio-
logical integrity of the Nation’s waters” (CWA § 101
(a), 33 U.S.C. 125l(a)).’ As a part of that program,
Section 30l(a) of the Act prohibits all discharges of
pollutants into navigable waters except those made in
compliance with other sections of the Act, including Sec
tion 402, which establishes the National Pollutant Dis-
charge Elimination System (NPDES) (33 U.S.C. 1342).
See 33 U.S.C. 1311 (a).
Section 402(a) prevides that the Environmental Pro-
tection Agency ‘EPA) shall issue NPDES permits au-
thorizing effluent discharges in strict compliance with
conditions specified in the permit. 33 U.S.C. 1342(a).*
‘The Clean Water Act was recently amended and reauthorized
through the Water Quality Act of 1987, Pub. L. No. 100-4, 101
Stat. 7, which has not yet been officially codified. We shall cite to
the Statutes at Large in deacribing relevant sections of that Act.
2 See generally /nternational Paper Co. Vv. Ouellette, No. 85-1233
(Jan. 21, 1987), slip op. 7-9; EPA V. California ez rel. State Water
Section 402(b) allows each State to develop and admin-
ister its own permit program, provided that the program
meets federal requirements. 53 U.S.C. 1342(b). And
Section 402(c) provides that EPA shall suspend issuance
of federal permits upon determining that a State has
adequate authority to implement and enforce the permit-
ting program within the State. 33 U.S.C. 1342(c).’
If a NPDES permit holder fails to comply with the
specified permit conditions, the federal and state govern-
ments may take enforcement action. Section 309 of the
Clean Water Act empowers EPA to enforce a federal or
state permit through a variety of administrative, civil,
and criminal mechanisms. See 33 U.S.C. 1319. A state
may take similar action, under appropriate state law, in
to a violation of a state-issued permit. See CWA
§ 402(b) (7), 33 U.S.C. 1342(b)(7). In addition, Sec-
tion 505(a) (1) of the Clean Water Act permits private
citizens to commence a civil action in certain situations
against anyone “who is alleged to be in violation of * ?
an effluent standard or limitation under this chapter”
(38 U.S.C. 1365(a)(1)), which includes a federal or
state NPDES permit or condition thereof (33 U.S.C.
1365(f)). 33 U.S.C. 1365. Section 505 specifically au-
thorizes the district courts to enforce the permit require-
ments and impose civil penalties, which are payable solely
to the Treasury. 33 U.S.C. 1365.
Resources Control Board, 426 U.S. 200, 205-208 (1976). NPDES
permits generally specify particular effluent parameters, including
permissible concentrations of particular pollutants, based on daily
and monthly averages. NPDES permits also require, pursuant to
Section 402(a)(2) (33 U.S.C. 1342(a)(2)), that the permittee
monitor its effluent and submit reports (typically on a monthly
basis) disclosing the results. Such reports, generally known as
discharge monitoring reports (DMRs), are available to any inter-
ested person upon request. See CWA § 308, 33 U.S.C. 1318; 40
C.F.R. 122.41 (h) (4).
31If the Administrator subsequently determines that a State is
failing to administer a program in accordance with federal require-
ments, he may, after notice to the State, withdraw approval. CWA
§ 402(c) (3), 38 U.S.C. 1342(c) (3).
4
B. The Present Dispute
The Commonwealth of Virginia has established a fed-
erally approved state NPDES program conducted through
the Virginia State Water Control Board. See Va. Code
Ann. §§ 62.1-44.2 et seg. (1982). In 1974, the Board
issued an NPDES permit to ITT-Gwaltney, Inc., govern-
ing that company’s discharges from its hog-slaughtering
and packing plant into the Pagan River, a tributary of
the James River and the Chesapeake Bay. The permit,
which was reissued in 1979 and amended in August 1980,
sets forth seven effluent parameters.‘ Petitioner Gwalt-
ney of Smithfield, Ltd. (Gwaltney) assumed obligations
under the amended permit on October 27, 1981, follow-
ing its acquisition of the assets of ITT-Gwaltney, Inc.
Pet. App. 3a-5a; J.A. 56-58, 72-74; C.A. App. 307-310.
On February 29, 1984, respondents sent a formal
notice to Gwaltney, the Administrator of EPA, and the
Virginia State Water Control Board, declaring respond-
ents’ intention to commence a citizen suit against Gwalt-
ney under Section 505 of the Clean Water Act demanding
that Gwaltney comply with its NPDES permit.’ Respond-
ents, relying on Gwaltney’s own discharge monitoring
reports (DMRs) (see note 2, supra), recited that over
the previous five years Gwaltney’s facility had repeatedly
violated conditions of its permit limiting discharges of
total Kjeldahl nitrogen (TKN), fecal coliform/chlorine,
and other pollutants. Respondents provided a table de-
* The permit specifies effluent standards for oi! and grease, total
suspended solids, total Kjedah! nitrogen, biological oxygen demand,
feca! coliform, chlorine, and pH.
5 Section 505(b)(1)(A) of the Clean Water Act provides that a
citizen must give 60 days’ notice to EPA, the state, and the alleged
violator, before commencing a citizen suit. 33 U.S.C. 1366(b)
(1)(A). The citizen may not proceed with its suit if EPA or the
state elects to commence its own compliance suit. CWA § 505(b
(1) (B), 38 U.S.C. 1365(b) (1) (B)
* The NPDES permit’s limitation on TKN addresses the problem
of contaminaticn from organic nitrogen and ammonium compounds
tailing those violations. The table (which underestimated
Gwaltney’s actual violations) showed, for example, that
Gwaltney had exceeded permit limitations 57 times in the
previous 12 months, that it was in violation in 9 of those
12 months, and that it had violated its permit 36 times
in the previous 3 months. Pet. App. 4a-5a, 79a-S4a;
Complaint Exh. A.
On June 15, 1984, respondents filed a citizen suit
against Gwaltney under Section 505, requesting the dis-
trict court to provide declaratory and injunctive relief
requiring Gwaltney to comply with its NPDES permit,
to impose civil penalties, and to award attorneys’ fees
and costs. Pet. App. 79a-84a. The complaint incorpo-
rated by reference the February 29, 1984, notice letter
and its attached table as well as a second table indicat-
ing that Gwaltney reported 4 additional violations from
‘February through March 1984 (Complaint {17 & Exhs.
A & B). Gwaltney’s subsequent DMRs revealed a total
of 13 violations from February through May 1984. See
J.A. 117.
The district court granted partial summary judgment
on August 30, 1984, declaring Gwaltney “to have vio-
lated and to be in violation” of the Clean Water Act
that, when released into a river, can oxidize and consume dissolved
oxygen necessary to sustain fish and other river species. Gwaltney
treats these nitrogen-containing compounds through retention of
effluent in lagoons containing microbes that complete the “nitri-
fication” process prior to discharge. Violations of the TKN stand-
ards represent a failure to nitrify the effluent adequately. See
J.A. 110-111. The NPDES permit’s limitations on fecal coliform
and chlorine address the problem of biological contamination in
Gwaltney’s wastewater. The pork processing plant’s untreated
effluent contains bacterial contamination from anima! wastes that
can threaten public health. Gwaltney reduces these fecal coliforms
through chlorination. Violations of the fecal coliform standards
and the minimum chlorine standards represent a failure to provide
adequate chlorination. Violations of the maximum chlorine stand-
ards represent overchlorination, which can be toxic to the river's
life forms. See J.A. 100.
7
court held, in the alternative, that respondents satisfied
Section 505’s jurisdictional requirements because that
section authorizes a private enforcement action against
a defendant “who is alleged to be in violation of” per-
mit requirements (33 U.S.C. 1365(a)‘1)) and respond-
ents’ complaint contained a good faith allegation of a
continuing violation (J.A. 83 n.8).* The court explained
( ibid.) :
It was not until Gwaltney had experienced a full
winter without problems that it could make its mo-
tion to dismiss based on its present compliance, with
a secure belief that it was indeed in compliance. * * *.
On these facts, the Court believes that even if Gwalt-
ney were correct that a district court has no juris-
diction over citizen suits based entirely on unlawful
conduct that occurred entirely in the past, the Court
would still have jurisdiction here.
The district court then conducted a detailed review of
the evidence of permit violations and assessed a civil
penalty on the basis of criteria set forth in EPA's guide-
lines for civil penalty settlements (J.A. 89-115). See
EPA Civil Penalty Policy, (Federal Laws} Env't Rep.
(BNA) 41:2991 (June 1, 1984). The court also ordered
Gwaltney to provide respondents with future discharge
monitoring reports (J.A. 119-120).
The court of appeals affirmed (Pet. App. la-25a).
The court rejected Gwaltney’s argument that respond-
ents’ suit should be dismissed for lack of subject matter
jurisdiction. It reasoned that Section 505’s authorization
of suits against persons “alleged to be in violation” (33
U.S.C. 1365(a)) of the Clean Water Act “can be read
to comprehend unlawful conduct that occurred only prior
* The complaint stated that Gwaltney “has continued to violate
its discharge permit since { respondents’! letter dated February 29,
1984,” and that respondents “believe and allege that without the
imposition of appropriate fines and issuance of an injunction,
[Gwaltney | will continue to violate its NPDES permit to the fur-
ther injury of [respondents|" (Pet. App. 82a-83a).
SUMMARY OF ARGUMENT
A
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9
must dismiss a citizen suit against a company that has
continuously violated its Clean Water Act discharge per-
mit unless the citizen demonstrates that the company
has committed discrete permit violations on or after the
day the complaint was filed. We submit that Section 505
quite clearly allows a citizen to initiate an action upon
an allegation of a continuing violation. The citizen’s
allegation, if made in good faith and well grounded in
fact, states a cause of action within the district court’s
jurisdiction. A court’s jurisdiction may, of course, abate
if the citizen’s action becomes moot during the judicial
proceedings. However, it is quite clear from the record
here that this citizen action did not become moot.
Our analysis proceeds from the content and structure
of the Clean Water Act’s enforcement provisions. Con-
gress has vested the EPA and the individual states with
primary responsibility for enforcement of the Clean
Water Act. CWA § 309, 33 U.S.C. 1319. The federal
and state governments have broad authority to abate
present violations through administrative and judicial ac-
tions and to penalize past noncompliance through crimi-
nal and civil penalties. See ibid. Congress has also au-
thorized private citizens to join in the enforcement ef-
fort in certain limited circumstances. Section 505 of
the Clean Water Act specifically authorizes private citi-
zens to commence an enforcement action against persons
who are “alleged to be in violation” of the Act. 33
U.S.C. 1365.
We believe that Section 505 requires a citizen to al-
lege, as an essential element of his private enforcement
action, that the defendant is presently failing to comply,
on a continuous or intermittent basis, with the Act’s
requirements. That allegation, when made in good faith
and well grounded in fact, states a cause of action within
a federal court’s subject matter jurisdiction. The plain
language of Section 505 quite clearly specifies that the
citizen need only allege—and not prove—present noncom-
10
pliance to state a cause of action. Section 505’s legisla-
tive history and the Clean Water Act’s overall structure
and objectives fully support that interpretation.
The respondents here properly alleged that Gwaltney
was failing to comply with its pollution discharge permit
and therefore stated a cause of action within the dis-
trict court’s jurisdiction. Gwaltney’s unrelenting pat-
tern of violations, which—despite respondents’ notice of
intent to sue—continued up to the time the complaint
was filed, fully established the reasonableness of respond-
ents’ allegations. Indeed, the district court ruled, on re-
spondents’ uncontested motion for summary judgment,
that Gwaltney was “in violation” of the Act (J.A. 58).
The only remaining question is whether Gwaltney’s
subsequent claims of compliance should have divested the
court of jurisdiction. That question is answered by ap-
plying well established mootness principles to the facts
of this case. We believe that Gwaltney failed to show
that the citizen’s action was moot.
ARGUMENT
SECTION 505 OF THE CLEAN WATER ACT AUTHOR-
IZES CITIZENS TO MAINTAIN A PRIVATE EN-
FORCEMENT ACTION AGAINST A COMPANY THAT
REPEATEDLY VIOLATES ITS DISCHARGE PERMIT
EVEN IF THE COMPANY COMMITS NO DISCRETE
PERMIT VIOLATIONS ON OR AFTER THE DAY THE
COMPLAINT IS FILED
A. The Clean Water Act Gives EPA And The Individual
States Primary Responsibility For Ensuring Effective
Enforcement Of The Act’s NPDES Permit Program
The Clean Water Act establishes “ ‘an all-encompassing
program of water pollution reguiation.’” International
Paper Co. v. Ouellette, No. 85-1233 (Jan. 21, 1987), slip
op. 9 (quoting City of Milwaukee v. Illinois, 451 U.S.
304, 318 (1981)). It contains “unusually elaborate en-
forcement provisions, conferring authority to sue for this
purpose both on government officials and private citi-
11
zens.” Middlesex County Sewerage Authority v. National
Sea Clammers Ass’n, 453 U.S. 1, 18 (1981); accord
International Paper, slip op. 10. As one would expect,
EPA and the individual states have primary responsi-
bility for enforcement of the Clean Water Act’s NPDES
permit program. Hamker v. Diamond Shamrock Chemi-
cal Co., 756 F.2d 392, 395 (5th Cir. 1985). Section 309
of the Act establishes five distinct federal enforcement
mechanisms, allowing EPA to take action appropriate to
the characteristics of the particular compliance problem.
And Section 402 requires the states to provide similar
remedies in formulating their own NPDES programs for
EPA approval.
Section 309 sets forth two methods for EPA to ensure
present and future compliance with permit requirements.
Section 309(a) provides that when the Administrator of
EPA discovers that any person “is in violation” of a
federal or state NPDES permit requirement, “he shall
issue an order requiring such person to comply with
such * * * requirement, or he shall bring a civil action
in accordance with subsection (b) of this section.” 33
1319(a) (3)." Section 309(b) authorizes the Adminis-
trator “to commence a civil action for appropriate re-
lief, including a permanent or temporary injunction, for
any violation for which he is authorized to issue a com-
pliance order under subsection (a) of this section.” 33
11 Section 309(a)(1) provides that the Administrator may refer
a violation of a state NPDES permit to the state for enforcement
under its federally approved permitting program. 33 U.S.C.
1319(a)(1). If the state fails to take timely enforcement action,
the Administrator may initiate an administrative or judicial en-
forcement action. Jbid. Section 309(a)(2) provides that if the
state enforcement mechanisms are inadequate, the Administrator
shall assume full enforcement responsibility within the state. 33
U.S.C. 1319(a) (2). Section 309(a)(3) specifically authorizes the
Administrator to issue compliance orders, while Section 309 (a) (4)-
(6) set forth criteria for issuance of those orders. 33 U.S.C.
1319(a) (3)-(6).
12
U.S.C. 1319(b).% These two methods provide EPA with
full authority to ensure that a party complies with
NPDES permit requirements.
Section 309 also sets forth three methods for EPA to
penalize noncompliance. Section 309(c) provides that
any person who negligently or willfully violates an
NPDES permit requirement shall be punished by a fine,
imprisonment, or a combination of both sanctions. 33
U.S.C. 1319(c).“ Section 309(d) provides, more gen-
erally, that any person who violates a permit requirement
shall be subject to a judicially imposed civil penalty. 33
U.S.C. 1319(d).% And Section 309(g), added by Sec-
tion 314 of the Water Quality Act of 1987 (see note 1,
supra), provides that whenever the Administrator dis-
12 Section 309(b) provides that “[ajny action under this sub-
section may be brought in the district court of the United States
for the district in which the defendant is located or resides or is
doing business, and such court shall have jurisdiction to restrain
such violation and to require compliance.” 33 U.S.C. 1319(b).
18 Section 312 of the Water Quality Act of 1987, Pub. L. No.
100-4, 101 Stat. 42, amended Section 309(c) of the Clean Water Act
to expand significantly the reach of potential criminal liability
and to increase the potential penalties. Under those amendments,
a defendant who negligently violates a permit may be imprisoned
for up to one year and may be fined up to $25,000 for each day
the violation continues. 101 Stat. 42-48. These penalties are
doubled in the case of a repeat offender. 101 Stat. 43. A defend-
ant who knowingly violates a permit may be imprisoned for up to
three years and fined up to $50,000 for each day the violation con-
tinues. /bid. These penalties, again, are doubled in the case of a
repeat offender. /bid. Section 309(c), as amended, also imposes ad-
ditional penalties for knowing endangerment of other persons, false
statements, and tampering with monitoring devices. 101 Stat. 43-44.
4 Section 313 of the Water Quality Act of 1987 amended Section
309(d) to increase the maximum civil penalty from $10,000 per day
for each violation to $25,000 per day for each violation. 101 Stat.
45. It also amended Section 309(d) to specify certain factors—-such
as the seriousness, economic benefits and history of the violations
that are to be taken into account in assessing civil penalties. /bid.
13
covers that a person has violated any permit condition or
limitation, he may assess an administratively imposed
civil penalty. 101 Stat. 46."
Thus, the Clean Water Act grants EPA extraordinarily
broad powers to compel compliance with NPDES per-
mit requirements and to penalize noncompliance. The
Act further provides that individual states that adminis-
ter federally approved NPDES programs must have com-
parably broad enforcement authority." Section 402(b)
(1)(A) requires EPA to ensure that state programs ex-
hibit adequate authority to issue permits that “apply,
and insure compliance with” the Act’s requirements (33
U.S.C. 1342(b)(1)(A)) and to “abate violations of the
permit or the permit program, including civil and crimi-
nal penalties and other ways and means of enforcement”
(33 U.S.C. 1342(b)(7)). EPA’s regulations require, in
turn, that state programs provide mechanisms to restrain
violations through administrative and judicial action,
and to impose criminal and civil penalties for violations.
See 40 C.F.R. 123.27."
15 Section 309(g) creates two classes of administrative civil
penalties. Class I penalties, which respond to minor violations, are
imposed through an informal administrative procedure and may
not exceed $10,000 per violation or $25,000 in a single proceeding.
101 Stat. 46. Class II penalties, which respond to more serious
violations, are imposed through a formal administrative adjudica-
tion and may not exceed $10,000 per day of violation or $125,000
in a single proceeding. [bid.
16 Indeed, Congress expected that the states would eventually
assume the principal burdens of enforcing these permits. See,
e.g., H.R. Rep. 92-911, 92d Cong., 2d Sess. 115 (1972), reprinted in
Senate Comm. on Environment and Public Works, 93d Cong., Ist
Sess., 1 A Legislative History of the Water Pollution Control Act
Amendments of 1972, at 802 (Comm. Print 1973) [hereinafter
Leg. Hist.}.
1TIn the present instance, Virginia's NPDES permit program
authorizes the State Water Control Board to issue orders requiring
persons who have violated the terms and conditions of a certificate
issued by the Board to comply with such terms and conditions
14
In short, Congress formulated detailed and compre-
hensive enforcement mechanisms that allow the federal
and state governments to rectify present and past viola-
tions, tailoring their enforcement efforts in light of the
willfulness, seriousness, and continuity of the permittee’s
noncompliance.
B. Section 505 Of The Clean Water Act Authorizes Pri-
vate Citizens To Bring Civil Enforcement Actions
Against A Person Who Is Alleged To Be In Violaion
Of NPDES Permit Requirements
Congress supplemented the Clean Water Act’s broad
governmental enforcement provisions through Section
505, which authorizes private citizens to bring civil en-
forcement actions in certain carefully defined situations.
See 33 U.S.C. 1365." Of particular relevance here, Con-
gress determined that while the government may both
enjoin permit violations and penalize purely past trans-
gressions, citizen suits are directed toward ensuring
present compliance. Section 505 accordingly provides that
a citizen may commence a private enforcement action
upon an allegation that a party is failing to comply with
its NPDES permit.
(Va. Code Ann. § 62.1-44.15(8a) (iii Supp. 1986 The Board
may also bring a court action to enjoin ongoing violations id
§ 62.1-44.23 (1982)) and to seek imposition of civil penalties (id
§ 62.1-44.32; id. § 62.1-44.15(8c) (Supp. 1986
See Middlesex County Sewerage Authority, 453 U.S. at 14
Congress, recognizing that citizen «uits should serve as an important
but carefully circumscribed supplement to government enforcement
efforts, placed a number of significant limitations on private en-
forcement actions. For example, a citizen contemplating a citizen
suit must give pre-complaint notification to EPA, the state, and
the alleged violater, and may not proceed with its suit if the gov
ernment elects to commence its own compliance action. CWA
$505(b), 383 U.S.C. 1365(b See note 5, supra. And the Water
Quality Act of 1987 further provides that a citizen may not enter
into a consent decree with the alleged violator without first giving
the United States an opportunity to object to the proposed settie-
ment. See § 504, 101 Stat. 75.
Section 505(a) states that “any citizen may commence
a civil action on his own behalf * * * against any person
* * * who is alleged to be in violation of * * * an efflu-
ent standard or limitation” (33 U.S.C. 1365/a)). The
meaning of that provision is clear. Section 505 requires
a citizen to allege, as an essential element of his private
enforcement action, that the defendant is failing to com-
ply on a continuous or intermittent basis with his permit
requirements. That allegation, when made in good faith
and well grounded in fact ‘Fed. R. Civ. P. 11), states a
cause of action under Section 505 that falls within a
federal district court’s subject matter jurisdiction.” It
thus subjects the defendant to the full power of the court
“to enforce such an effluent standard or limitation * * *
and to apply any appropriate civil penalties under section
1319‘d) of this title” CWA § 505/a), 33 U.S.C. 1365
‘a).™
The plain language of the statute compels this con-
struction.“ Section 505(a) allows private enforcement
stitution or laws of the United States, to hear a case * * *.” Davis
Vv. Passman, 442 U.S. 228, 239 n.18 (1979). A citizen plaintiff
must satisfy the conditions set forth in Section 505 to state a cause
ef action falling within the federal court's subject matter jurisdic-
tion. To obtain relief, the citizen must also demonstrate, of course,
that he possesses standing to bring the action and that he is
entitled to an availeble remedy. See 442 U.S. at 239 n.18. See also
notes 34, 35, infra.
*See Pawturet Cove Marina, Inc. v. Ciba-Geigy Corp. 807
F.2d 1089 (ist Cir. 1986); Hamker v. Diamond Shamrock Chemical
Co., 756 F.2d 392 (5th Cir. 1985) ; see also City of Evansville v. Ken-
tucky Liquid Recycling, 604 F.2d 1008, 1014 (7th Cir. 1979), cert
denied, 444 U.S. 1025 (1980) (dicta).
*!“Absent a clearly expressed legislative intention to the con-
trary, that language must ordinarily be regarded as conclusive.”
Consumer Product Safety Commission v. GTE Sylvania, Inc. 447
U.S. 162, 108 (1980). See United States v. James, No. 85-434
(July 2. 1986). slip op. 6-8: United States v. Turkette, 452 U.S.
576, 580 (1981). ee
17
lative history provides no basis for deviating from Sec-
tion 505(a)’s unambiguous language. The committee re-
ports all diseuss citizen suits in the context of seeking
abatement of present violations.“ Furthermore, the re-
ports consistently adhere to the statutory formulation,
requiring an allegation of present noncompliance.”
struction that courts should give effect, if possible, to every word
that Congress has used in a statute.” Connecticut Dep't of Income
Maintenance ¥. Heckler, 471 U.S. 524, 530 n.15 (1985). See, ¢.9.,
Lowe Vv. SEC, 472 U.S. 181, 207 n.53 (1985); Reiter v. Sonotone
Corp., 442 U.S. 330, 339 (1979). That principle has particular force
here, where the legislative history suggests that Congress inten-
tionally chose this language (see note 25, infra) and the language
is fully cor..‘stent wich Congress's expressed objectives (see pages
18-22, infra).
“See S. Conf. Rep. 92-1236, 92d Cong. 2d Sess. 145 (1922)
(1 Leg. Hist. 328); H.R. Rep. 92-911, 92d Cong., 2d Sess. 132-134
(1972) (1 Leg. Hist. 819-821); id. at 407 (1 Leg. Hist. 876)
(additional views of Reo. Abzug); S. Rep. 92-414, 92d Cong., Ist
Sess. 79-82 (1971) (2 Leg. Hist. 1497-1500); see also 118 Cong.
Rec. 22692 (1972) (1 Leg. Hist. 163) (Sen. Muskie); 118 Cong.
Rec. 32717 (1972) (1 Leg. Hist. 221) (Sen. Bayh); 118 Cong. Rec.
10203 (1972) (1 Leg. Hist. 347) (Rep. Madden). As the court of
appeals noted (Pet. App. 14a), Senator Muskie stated at one point
that “a citizen has a right under section 505 to bring an action
for an appropriate remedy in the case of any person who is alleged
to be. or to have been. in violation, whether the violation be a
continuous one, or an occasional or sporadic one.” 118 Cong. Rec.
23700 (1972) (1 Leg. Hist. 179) (emphasis added). However,
that statement, read in context, simply indicates that an allegation
of a present intermittent violation will typically rest (as in the
instant case) upon a past pattern of chronic violations. See Paw-
turet Cove Marina, Inc., 807 F.2d at 10923 & n.3.
2% See S. Conf. Rep. 92-1236, supra, at 145 (1 Leg. Hist. 328)
(“Anvone may initiate a civil suit against any person who is
alleged to be in violation of an effluent limitation * * *.”) (em-
phasis added); H.R. Rep. 92-911, ewpra, at 133 (1 Leg. Hist. 820)
(“Subsection (a) of section 505 authorizes a citizen to bring a civil
action against any person * * * who is alleged to be in violation of
effluent standards * * *.”) (emphasis added) ; 8. Rep. 92-414, supra,
at 79 (2 Leg. Hist. 1497) (Section 505 “is carefully restricted to
actions where violations of standards and regulations * * * are
alleged.”) (emphasis added).
19 ”
Clean Water Act, an enforcement action—-whether
brought by the EPA, the states, or private citizens—will
usually be based upon the permit violations revealed in
the permittee’s own discharge monitoring reports.” But
in most cases, those reports are not publicly available for
several weeks (or longer, depending on the permit re-
quirement) following the month in which the violations
take place.” Thus, it is not generally possible for a citi-
zen to know a company’s precise compliance status on the
day—or even the month—in which he files his complaint.
Section 505(a)’s specification that a citizen may initiate
a private enforcement action on the basis of an allegation
—rather than proof—of present noncompliance allows the
citizen to commence suit upon a reasonably based good-
faith belief of ongoing noncompliance. The statutory
echeme wisely postpones the question whether the defend-
ant is in fact failing to comply with his permit require-
ments for adjudication on the merits.”
language is repeated in other statutes authorizing citizen suits.
See, ¢.g., Resource Conservation and Recovery Act § 7002, 42
U.S.C. (& Supp. III) 6972; Toxic Substances Control Act § 20,
15 U.S.C. 2619.
2% See, ¢.g., 8. Rep. 92-414, supra, at 62 (2 Leg. Hist. 1480); id.
at 81 (2 Leg. Hist. 1499).
% For example, the discharger must analyze samples, make the
necessary time-averaging caiculations, prepare the reports, and
submit them to EPA or the state enforcement agency. Citizens
may also encounter additional delays in obtaining the reports from
the appropriate governmental unit. See J.A. 82.
" Gwaltney’s suggestion that a citizen plaintiff should base his
complaint on a “current DMR” (Pet. Br. 19) misconceives the
problem—“current DMRs” provide only past compliance informa-
tion. For example, respondents filed their complaint on June 15,
1984, citing violations recounted in Gwaltney's most current pub-
licly available discharge monitoring report—the March 1984 DMR.
See Complaint Exhs. A & B. They promptly moved for partial
summary judgment (which Gwaltney did not oppose) citing those
violations as well as Gwaltney’s long history of ongoing violations.
See Motion for Judgment on the Pleadings (July 25, 1984). We
understand that at the time the district court granted partial
| ai .
ha if LM ills i
23
C. Respondents Properly Alleged That Gwaltney Was In
Violation Of Its NPDES Discharge Permit
We now turn to the application of Section 505’s re-
quirements to the instant case. Gwaltney portrays itself
as a company, conscientiously striving to meet its NPDES
permit requirements, that was wrongly sued after achiev-
ing full compliance through “state of the art” technology
(Pet. Br. 3-7, 9, 19-21, 43-44). We believe that the record
here and the district court’s findings paint a markedly
different picture. The record shows that Gwaltney con-
tinually showed disregard for its environmental compli-
ance obligations, that it eventuelly upgraded its simple
wastewater treatment facilities through rather rudimen-
tary improvements but continued to violate its discharge
permit, and that respondents therefore brought suit to
enjoin Gwaltney’s ongoing noncompliance. Respondents
dismiss for lack of subject matter jurisdiction (Fed. R. Civ. P.
12(b)(1)), which permits the court to look behind the bare plead-
ings. See, e.g., 2A J. Moore & J. Lucas, supra, § 12.07[2.-1]. The
threshold jurisdictional inquiry is limited, of course, to whether the
citizen has satisfMtorily alleged present noncompliance. CWA § 505
(a), 33 U.S.C. 1%65(a). The citizen need not prove the existence
of a violation—a matter that may be impossible to prove at the
preliminare stages of the litigation (see pages 18-19, supra).
He need only show that his allegations satisfy the Rule 11 standards
of good faith and reasonableness implicit in Section 505(a). Cf.
St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).
Gwaltney’s arguments concerning a plaintiff's obligation to prove
jurisdictional facts (Pet. Br. 38-41)—even if they are correct—
are simply inapposite in the present situation, where Congress has
expressly premised the existence of a citizen cause of action and
the court’s resultant statutory jurisdiction on the citizen’s allega-
tions, rather than the facts he proves at trial. The citizen must,
of course, prove those allegations to sustain his suit and obtain an
injunctive remedy, but that presents an entirely distinct question.
“A plaintiff may have a cause of action even though he be entitled
to no relief at all, as, for example, when a plaintiff sues for de-
claratory or injunctive relief although his case does not fulfill the
‘preconditions’ for such equitable remedies.” Davis v. Passman,
442 U.S. at 240 n.18.
24
properly stated a cause of action within the district
court’s jurisdiction and Gwaltney has failed to provide
a persuasive reason why that jurisdiction should abate.
The court of appeals’ judgment should therefore be af-
firmed, despite that court’s misunderstanding of the
proper jurisdictional inquiry.
The record indicates that Gwaltney’s compliance history
prior to suit was, by any reasonable standard, abysmal.
The facility violated its NPDES permit “on at least 237
occasions” between January 1979 and June 1984 (J.A.
58). Gwaltney conceded responsibility for more than 150
violations occurring after it purchased the facility in
October 1981 (Pet. App. 87a). Gwaltney violated its per-
mit 41 times in the three months immediately prior to
respondents’ February 29, 1984, letter informing the
company of their intention to bring a citizen enforcement
action (J.A. 116-117). And Gwaltney violated its permit
on 13 additional occasions between the time Gwaltney
received that notice and respondents filed suit (ibid.).”*’
The record further shows that respondents’ June 15,
1984, complaint properly states a cause of action under
Section 505. The complaint unambiguously alleged that
Gwaltnev was continually véolating its permit.” Civen
36 The district court later described Gwaltney’s ongoing violations
of the fecal coliform/chlorine standards as reflecting “an exceed-
ingly unconcerned” attitude and “lackadaisical approach” that
“border{ed] on benign neglect” (J.A. 108). It added that Gwaltney,
by its own admission, “could have begun addressing the problems
in its [TKN] biological treatment system substantially earlier”
(J.A. 114).
37 Gwaltney’s suggestion to this Court (Pet. Br. 41 & n.54)
that respondents’ complaint alleged past and future—but not pres-
ent—noncompliance is plainly without merit. Respondents’ com-
plaint alleged, inter alia, that Gwaltney “has violated the waste
water discharge limits contained in its NPDES permit, as set
forth in a letter to [Gwaltney] dated February 29, 1984”; that
Gwaltney “has continued to violate its discharge permit since | re-
spondents’ | letter dated February 29, 1984”; and that respondents
“believe and allege that, without the imposition of appropriate
25
Gwaltney’s existing compliance record, there can be no
serious dispute that respondents’ allegations of continuing
noncompliance were made in good faith and were well-
grounded in fact at the time the complaint was filed.
Gwaltney had repeatedly promised compliance (see, ¢./.,
J.A. 16, 29-80, 35-37, 51) but continued to violate its
permit (see J.A. 116-117). Respondents were fully justi-
fied in concluding that nothing short of legal action would
prompt Gwaltney to comply.”
fines and issuance of an injunction, defendant Gwaltney ** * will
continue to violate its NPDES permit.” Pet. App. 82a-83a (em-
phasis added). Respondents specifically requested, among other
relief, that the court “[dleclare defendant Gwaltney of Smithfield,
Ltd. to have violated and to be in violation of the Clean Water
Act, 33 U.S.C. Sections 1311 and 1342” (Pet. App. 83a (emphasis
added)). That complaint plainly met Section 505(a)’s threshold
requirement that a citizen allege present noncompliance.
38 Gwaltney now asserts, in hindsight, that respondents’ allega-
tions were unreasonable because it had ceased its fecal coliform /
chlorine violations “aside from start-up exceedences” over 20
months prior to suit and because Gwaltney had installed a “new,
state of the art treatment system” and, therefore, the company’s
“record of past TKN noncompliance was not at all indicative of
present, ongoing violations” (Pet. Br. 41-42). This argument, had
it been raised at the time the complaint was filed, would certainly
have been rejected. First, a citizen plaintiff may allege ongoing
permit noncompliance based on a defendant’s continuing violation
of different effluent parameters. See CWA § 505(f), 33 U.S.C.
1365(f) (defining “effluent standard or limitation” to include “a
permit or condition thereof” (emphasis added)). Furthermore,
Gwaltney’s water treatment system is in no sense technically in-
novative; it involves a simple chlorination and lagoon retention
process commonly used in small wastewater treatment plants. See
J.A. 18-27. Gwaltney’s long overdue improvements to its system
were quite rudimentary (see ibid.; Pet. App. 90a-93a). Moreover,
Gwaltney repeatedly represented that ‘t would achieve full com-
pliance within forty-five days after modifying the system (J.A. 38,
39). Gwaltney completed its modifications on October 18, 1983, but
continued to violate the fecal coliform parameter in December 1983
and February 1984 (J.A. 116). And Gwaltney violated its TKN
parameter in every month from October 1983 to May 1984. Thus—
26
Indeed, Gwaltney made virtually no effort to deny
respondents’ allegations in its July 5, 1984 answer to the
complaint. Gwaltney merely stated, as an affirmative
defense, that “the defendant has taken every reasonable
means to correct and prevent further violations of its
NPDES permit and there should be no further violations
of same in the future” (Answer 3 (July 5, 1984)).”
Gwaltney did move to dismiss the action, but only on the
ground that “the cause of action is not matured under
the Clean Water Act as the State Water Control Board
of Virginia is bringing suit in the State Courts of the
Commonwealth of Virginia to insure compliance by the
defendant with the requirements of its NPDES permit”
(ibid.). Thus, Gwaltney sought dismissal solely on the
basis that the Virginia State Water Control Board would
bring its own enforcement action “to insure compliance”
and that respondents brought their suit too soon rather
than too late.
If there were any doubt whether the respondents had
stated a proper cause of action, it was resolved through
the district court’s ruling on the merits. After filing
their complaint, respondents promptly moved for partial
summary judgment. See Motion for Judgment on the
Pleadings (July 25, 1984). They supported their motion
with an affidavit stating that Gwaltney’s “permit viola-
tions are ongoing; more violations have appeared each
as the district court later found (J.A. 83 n.8)—Gwaltney could not
credibly contend that it had achieved compliance at the time re-
spondents filed their complaint. Even if some of Gwaltney’s dis-
charges may have been “largely uncontrollable” and therefore did
not warrant enhanced civil penalties (see Pet. Br. 20; J.A. 115),
they were nevertheless violations indicating noncompliance. See
Train Vv. Natural Resources Defense Council, Inc., 421 U.S. 60, 92
(1975).
3° Gwaltney later conceded that its answer did not admit or deny
respondents’ averments and that the district court's subsequent
order granting partial summary judgment “rendered moot” the fil-
ing of such a responsive pleading. See Defendant's Memorandum
in Support of Motion for Rehearing 3, 14 (Oct. 16, 1984).
27
time [respondents] have updated their research.” Affi-
davit of Jeter M. Watson Supporting Plaintiffs’ Motion
{or Summary Judgment 4 (June 29, 1984). Gwaltney
did not dispute that affidavit; indeed, it filed no response
at all to respondents’ motion. The district court entered
partial summary judgment on August 30, 1984, finding
Gwaltney “to have violated and to be in violation” of the
Clean Water Act (J.A. 59). Thus, the court determined,
based on respondents’ uncontested allegations, that Gwalt-
ney was presently “in violation of its permit require-
ments.*°
In these circumstances, there can be no serious doubt
that respondents properly stated a cause of action under
Section 505 that fell within the district court’s subject
matter jurisdiction. Thus, the only remaining question
is whether Gwaltney’s subsequent claims of compliance
should divest the court of jurisdiction. The answer is
controlled by familiar and generally applicable mootness
principles governing injunctive actions.
This Court has long recognized that “as a general rule,
‘voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the
case, i.e., does not make the case moot.’” County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting
United States v. W.T. Grant Co., 345 U.S. 629, 632
(1953) ).* But jurisdiction, properly acquired, may abate
© The record suggests that even if Gwaltney had contested the
motion for summary judgment, its efforts would have been un-
availing. At the time the court ruled on the motion for summary
judgment, seven of the company’s last nine discharge monitoring
reports showed violations. See J.A. 116-117. The two reports show-
ing no violations, the June 1984 and the July 1984 DMRs (which
apparently were not publicly available, see note 31, supra), moni-
tored Gwaltney’s effluent during the summer months, when TKN
violations were unlikely to occur. Thus, they gave no assurance
that Gwaltney could remain in compliance through the winter
months. See J.A. 83 n. 8.
41 “Along with its power to hear the case, the court's power to
grant injunctive relief survives discontinuance of the illegal con-
28
“if the defendant can demonstrate that ‘there is no rea-
sonable expectation that the wrong will be repeated’ ”
(id. at 633 (citation omitted)). The defendant's burden
“ts a heavy one.” Davis, 440 U.S. at 631 (quoting
W.T. Grant Co., 345 U.S. at 633).% These principles—
which, like the requirement of standing, embrace core
Article III concerns—are fully applicable to Clean Water
Act citizen suits, which must be predicated upon an alle-
gation of present noncompliance. See notes 32, 35, supra.
We can envision situations where a defendant might
extabiph that its cessation of permit violations renders a
citizef suit, properly initiated upon an allegation of on-
going violation, nonjusticiable. But the instant case does
not fall within that description. The district court deter-
mined on August 30, 1984—ten weeks after the com-
plaint was filed—that Gwaltney was “in violation” of the
Clean Water Act. Gwaltney did not raise its belated
claim of present compliance until May 16, 1985, six
months after the district court’s trial on an appropriate
remedy and nearly one year after the complaint was
duct.” W.T. Grant Co. 345 U.S. at 633. These principles apply
even when the cessation occurs prior to the filing of the complaint.
See. ¢.¢.. United States v. Parke Davis & Co., 362 US. 29. 4
(1960). “It is the duty of the courts to beware of efforts to defeat
injunctive relief by protestations of repentance and reform, espe-
cially when abandonment seems timed to anticipate suit, and there
is a probability of resumption.” United States V Oregon State
Medical Society, 343 U.S. 326, 333 (1952).
«2 This Court has refused to dismiss on mootness grounds where,
for example, “it is not ‘absolutely clear,’ absent the injunction,
‘that the allegedly wrongful behavior could not reasonably be ex-
pected to recur.’” Vitek v. Jones, 445 US 480, 487 (1980) (quot-
ing United States v. Phosphate Export Ass'n, 398 U.S. 199, 208
(7968)). But even if a court refuses to dismiss on jurisdictional
grounds, it may still deny relief on the merits, on legal, factual
or equitable grounds. /d. at 203-204. See, e.g., Amoco Production
Co. v. Gambell, No. 85-1239 (Mar. 24, 1987), slip op. 9; Wert
herver V. Romero-Barcelo, 456 U.S. 305 (1982
29
filed.“ The district court found that Gwaltney’s own
that “Gwaltney appears to have achieved compliance”
(J.A. 111 n.25), noting that a contrary conclusion
there was no reasonable prospect of future noncompli-
ance; it mandatorily enjoined Gwaltney to provide re
spondents with “all reports [Gwaltney] submits to state
or federal government(s] relating to its NPDES permit”
including monthly discharge monitoring reports detailing
Gwaltney’s compliance status (J.A. 119).
Thus, the record and the district court’s determinations
indicate that Gwaltney failed te show that “ ‘there is no
reasonable expectation that the wrong will be repeated’ ”
(W.T. Grant Co., 345 U.S. at 633). The district court
therefore had jurisdiction to enter an appropriate rem-
edy. The question whether the court abused its discretion
in formulating its remedy (Pet. Br. 42-43)—like ques-
tions surrounding citizen settlement practices ‘Pet. Br.
30-32) —is not, of course, before this Court.
In sum, we submit that the courts below reached the
correct result in holding that Gwaltney was not entitled
to a dismissal of respondents’ suit under Fed. R. Civ.
P. 12(b){1). Respondents properly alleged Gwaltney
*“ Gwaltney now places great reliance on a December 17, 1984,
joint pretrial stipulation filed by Gwaltney and respondents, claim-
ing that it represents a concession that Gwaltney was in present
compliance with its permit requirements (Pet. Br. 7). However,
that stipulation simply states that [“Gwaltney's) DMR'’s [| Exhibit
10) do not reflect any permit violations on any occasion subsequent
to May 15, 1984” (Pet. App. 86a). Respondents did not concede
thet Gwaltney had ceased continuing to violate its permit; they
simply stipulated to the contents of Gwaltney's discharze monitor-
ing reports (which, even at that time, were available only up to
August 1984) for the purpose of determining an appropriate civil
penalty.
30
“to be in violation” of its NPDES permit and the record
findings reveal no reason under traditional principles
governing injunctive actions why the district court should
have been divested of jurisdiction. That should be the end
of the jurisdictional inquiry.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
CHARLES FRIED
Solicitor General
THOMAS E. HOOKANO
Acting Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor General
DAVID C. SHILTON
KAREN L. FLORINI
Attorneys
MAY 1987
WG. 8. covernmenr peinrine orrica; 1987 181483 40358
ee
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