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

- BEST AVAILABLE COPY

QUESTION PRESENTED

Did the court below err in holding

that citizen suits may be brought under

the Clean Water Act, 33 U.S.C. §1365,

seeking civil penalties for past

violations against defendants who are

currently in full compliance with the Act?

TABLE OF CONTENTS

TABLE OF AUTHORITIES. .

STATEMENT OF INTEREST

OF AMICUS CURIAE °°

INTRODUCTION AND

STATEMENT OF THE CASE.

SUMMARY OF ARGUMENT. .

ARGUMENT

I.

THE CLEAN WATER ACT CREATES A

STATUTORY SCHEME WHICH LIMITS

CITIZEN SUITS TO ABATEMENT OF

PRESENT VIOLATIONS... .. . 10

A. The Structure of the Act

Gives Primary Enforcement

Authority to the Government . 10

B.

The Statutory Language Creates

Citizen Suit Jurisdiction Only

as to Current Violations. . . 13

1.

2.

On its Face the Statute

Requires a Showing of

Present Violation. .. . 13

Jurisdiction Under the

Citizen Suit Provision

is Not Analogous to

Jurisdiction Over

Governmental Enforcement

Actions. eessedces

The Legislative History

Demonstrates Congress's

Intent to Limit Citizen

Suits to Abatement of

Current Violations. .. 21

i

4. The Legislative History

Demonstrates that Congress

Intended Not to Create a

Private Incentive to Sue. 23

Il. THE CURRENT PATTERN OF USE OF

CITIZEN SUITS DEMONSTRATES THAT

THE BROAD JURISDICTIONAL READING

PROPOSED BY THE PLAINTIFFS IS AT

VARIANCE WITH THE INTENT OF

CONGRESS. . ee © © © © « 2B

A. There has Recently Been a

Prolific Increase in Citizen

Suits Under the Act, Largely

As a Result of the Statutory

Interpretation Which is at

Issue Herein. «+++ ++ 29

B. Penalty Claims for Past

Violations are a Significant

Factor in the Increased

Number of Citizen Suits... .34

Cc. Citizen Suits for Civil

Penalties for Past

Violations are Used for

Substantial Private Gain. .. 37

D. Such Use of Citizen Suits

Interferes with the Statutory

Scheme. seeeceoeces &

III. UNDER THE CORRECT

JURISDICTIONAL RULE A CITIZEN

SUIT IS AVAILABLE ONLY IF THE

ACT IS IN FACT VIOLATED AT THE

TIME SUIT IS FILED. .... « 52

A. The Jurisdictional Test Should

Reflect the Factual Standard for

Injunctive Relief. ... +. + 52

ii

B. The Jurisdictional Test

Should Be the Actual Fact of

a Continuing Violation and

Not One of Merely Good Faith

Pleadin g . . . . . . . . 58

CONCLUSION oe © 0 eo © @ 62

iii

TABLE OF AUTHORITIES

Cases

American Fire and Casualty Co. v. Finn,

341 U.S. 6 (1951) eseeeeeeeeeeeeeeee 60

American Mutual Liability Ins. Co. v.

Campbell Lumber Mfg. Cor -"

329 F.Supp. 1283 (N.D. Ga. 1971) 61

Atlantic States Legal Foundation v. Al

Tech Specialty Stect Corp.,

635 F.Supp. 264 (N.D.N.Y. 1986) .. 39

Chesapeake Bay Foundation and Natural

Resources co Council v.

Bethlehem Steel Corp.,

No. Y -1620 . Md. Feb. 16, 1987)

errr eee eee e eee eeeeeee eee eee ee eeeee 42

Chesapeake Bay Foundation and Natural

Resources oa Council v.

Gwaltney of Smithfield Ltd.,

791 F.2d 304 (4th Cir. 1986)

eee eee eee eeeeeee 16, 18, 40, 51-52

611 F.Supp. 1542 (E.D. Va. 1985)

eee eee eee eee eeeeeeeeeeeeeeeee 35, 52

City of Evansville v. Kentucky Liguid

Rec .

604 3

-2d 1008 (7th Cir. 1979),

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

eeeee ee eee eeeee eee eeeeeeeeeeeee 14,15

Consumer Products Safety Commission v. GTE

Sylvania,

447 U

-S. 102 (1980) eeeeee ee eee eeee 14

Connecticut Fund for the Environment and

Natural Resources Defense Council v.

Bridgeport Brass Co.,

No. H-84-955 (D. Conn. Oct. 23,

CEES SD coccesccecocececesocoescecee

iv

Connecticut Fund for the Environment and

atur esources Defense Council

Ve ntract tin **

631 F.Supp. 1291 - Conn. 1986)

eeeeeeee eee eeeeeeeeeeeeeeeeeeeeeeee 45

Connecticut Fund for the Environment and

atur esources Defense Council v.

Job Plating Co., Inc.,

623 F.Supp. 207 (D. Conn. 1985) .. 45

Environmental Defense Fund v. Costle,

. >. > ir. eee ee 19

Hamker v. Diamond Shamrock Chemical Co.,

56 F.2 th Cir. 198

eees 10, 13-14, 17, 24, 26-28, 53, 62

Hudson River Sloop Clearwater, Inc., and

Natural Resources Defense Council v.

White Mop Wringer Co.,

No. 55-CV-1306 (N.D.N.Y. June 12,

1984) eeeeeeeeeeeeee ee eee ereeeeeeeee 44

Jones v. Landry,

387 F.2d 102 (5th Cir. 1967) ...... 61

Land v. Dollar,

330 U.S. 731 (1947) eeeeeeeeeeenenenene 60

McNutt v. General Motors ee

Middlesex bl Sewerage Authority v-

ation ea mmers Association,

953 U.S. 1 (1981)

ccccccccccse 88, 23, 00°. DB. MBM. 87

National Sea Clammers Association v.

New York,

612 F.2d 1222 (3d Cir. 1980), rev'd

sub. nom. Middlesex County Sewerage

Authority v.National Sea Clammers

Association eeeeeeeeeeeeeeeeeeeeeee 20

Pawtuxet Cove Marina, Inc. v. Ciba-Geigy

rp.,

807 F.2d 1089 (1st Cir. 1986)

eoeccsceseceseslG, 37, 53-54, 58-59, 62

Sierra Club v. Aluminum Compan of

America,

585 F -Supp. 842 (N.D.N.Y. 1984) eee 42

Sierra Club and Natural Resources Defense

Feb. 14,

1983) ere er eee eee eee eeeeeeeeeeeeeeee 43

Sierra Club v. Keystone Automotive Plating

No. HM 84-4020 (D. Md. May 30, 1986)

eee eee eee eee eee eee eee eee eee ee ee eee 42

Sierra Club v. eae ECG,

Oo. Ww. . . . Jan. 25, 1983)

ere eee eee eee eee eee eee ee eee eee eee eee 43

Student Public Interest Research ae of

ew ersey Vv. &

ratories,

24 Env. Rep. Cas.1996 (1986) ... 47-48

Student Public Interest Research Group of

New Jersey Vv. Jersey Central Power

642 F.Supp. 103 (D. N.J. 1986) .... 39

Student Public Interest Research Group of

ew erse at esources

New Jersey and Natural Resources : end_ Natural

Co.

No. 83-685 (D. N.J. Jan. 19, 1984) 44

Student Public Interest Research Group of

New Jersey Vv. Ragen Precision

Industries,

No. 83-1604 (D. N.J. Nov. 16, 1985)

sre eee eee eeee ee eee ee ee oe 42

vi

Student Public Interest Research Group of

ew Ve santo *.

600 vaas. 1474 (D. N.J. 1985) ... 47

Student Public Interest Research Group of

New Jersey v. Tennaco Polymers,

602 F.Supp. 1 * > 1985 see 39

U.S. v. Earth Sciences, Inc., 599 F.2d 368

(10th Cir. 1979) eeeeeeeereeeeeee eee 19

Statutes and Regulations

28 U.S.C.

§1331 .ccccccccccccccccccescesesess 20

$1345 ccccccccccccccccccesesesesess 19

§24G2 ccccccccccccccccccccseseseses JO

31 U.S.C.

§3302(c) eeeeeeeeeeeee eee eeeeeeeeree 47

33 U.S.C.

§1251 wcccccccccccccecccccccesecess 49

§131B cnccccccccccccccecessseceeedO- ao

§1319 .....+000+-13, 18-19, 21, 40, 56

§1365 scccccccccesececesl3, 18, 29, 59

Resource Conservation and Recovery Act,

42 U.S.C. §6972 (1984) eeeeeeeeeeee 33

Comprehensive Environmental Response,

Compensation and Liability Act,

42 U.S.C. §9601, et seq. (1980) ... 33

Superfund Amendments and Reauthorization

Act of 1986,

Pub. L. 99-499 eeeeeeeeeeeeeeeeeeee 33

Water Quality Act of 1987,

Pub. L. 100-4, °01 Stat. 7,

§314 ccccccccee seeccecescesess coos 12

$504 wcccccccccccccccccscescsccsess 47

40 C.F.R. §122-41(1)(4) coneeceeces - 39,56

Legislative Materials

A_ Legislative Histor of the Water

ollution Control Amendments of 1972

(1973)

Vol. 1 eee eee eee eee eeee 21-23, 24, 26

Vol. 2 eeocccccesesecccesll, 22, 24, 26

S. Rep. No. 414, 92nd Cong., ist Sess. at

64, 79-81, rinted in 1972 U.S. Code

Cong. & ad. _—-y Vol. 2 at 3745

Water Pollution Control ee

earings Before the Su ttee on

Air and Water Pollution of the

Commission on Public Works, U.S.

Senate, 92nd Congress, lst Sess.,

Serial No. $2-H9 at 109, 114, 707

err ee eee eee eee eee eee eee eee eee eee 22-23

118 Cong. Rec. 33,693 ewer ee ee eee eeeeee 21

Other Authorities

D.P. Jones, Activists Pressure Polluters.

Hartford Courant, October 6, 1986

p- 1 ere eee eee eee eee eee eee eee eee eee 46

Environmental Law Institute, Citizen

Suits: An Anslysis of Citizen

niorcement Cc s Inder

EPA-Administred Statutes (1984)

Cee ee eee eeeeeeeeeeeeeeeseeea”d, 33, 43

Lewis, Environmentalists' Authority to Sue

Industry for Civil Penalties is

Unconstitutional Under the Separation

of Powers Dctrine,

16 Envir. L. Rep. 10101,10102 (1986)

Jie ee ee 31

viii

J. Miller, Private Enforcement of Federal

Pollution Control Laws: Part lll, 14

Envtl L. Rep (Envtl L. Inst.) 10407,

10426 (1984)

Petition for Writ of Certiorari of

Gwaltney of Smithfield, Ltd. ....-- 34

R. Schwartz & D.P. Hackett, Citizens Suits

Against Private Industr Under the

— Air Act, 17 Wocoral Resources

Lawyer 327 (1984) seeeeeeee 25-27, 41

Webster's New World Dictionary (1976) 23

ix

STATEMENT OF INTEREST

OF AMICUS CURIAE

The Connecticut Business and Industry

Association ("CBIA") is the largest

business organization in the State of

Connecticut, having 6300 members who

employ a total workforce of over 700,000

employees. CBIA presents the views of its

members on public policy and legal issues

to legislative and judicial authorities.

CBIA and its members have been

directly involved in the issue that is

before the Court. Of the 54 Citizen

Notices of Intent to sue filed in

Connecticut since 1983, 42 have named CBIA

members as defendants. These members have

thus far paid over one million dollars in

settlements, and other suits are still

pending.

This Court previously granted CBIA's

Motion for Leave to file a brief as amicus

curiae in support of the petition for

-l-

a

certiorari herein. CBIA has received the

written consent of all parties to file

this brief, and said consents are filed

herewith.

INTRODUCTION AND STATEMENT OF THE CASE

In its narrowest outlook this case

concerns whether Gwaltney of Smithfield,

Ltd., shall have to pay $1.3 million into

the United States Treasury as a civil

penalty on a suit brought by private

plaintiffs, despite having already

achieved full compliance with its permit

requirement prior to the institution of

this action.

But to an extent considerably beyond

that of the usual case, this matter also

involves issues which will heve a

Significant continuing effect on a

multitude of persons, business

enterprises, and regulatory agencies

throughout the nation. The citizen suit

provision at issue herein appears not only

in the Clean Water Act, 33 U.S.C. §1365,

but in relevant part also in two other

major federal environmental statutes, RCRA

and the "Superfund" statute, CERCLA.

Under the Clean Water Act itself there are

roughly 65,000 NPDES permits, the holders

of which, even if presently in full

compliance, may still be vulnerable to

citizen suits under the interpretation

suggested by the plaintiffs, Chesapeake

Bay Foundation and Natural Resources

Defense Council.

The plaintiffs’ reading of the statute

has already generated a substantial

increase in citizen suit litigation under

the Clean Water Act alone. The provision

had been used sparingly prior to late

1982, an average of five times a year, but

has since seen over 640 Notices of Intent

to sue under §1365(a)(1).

The broader application of this case

will have major implications for a great

number of environmental permittees and

potential citizen organizations. Its

implications differ significantly,

however, from what CBF and NRDC argue.

The outcome of this case will have no

noticeable effect on compliance under

these environmental Statutes, as

compliance is not at issue. Gwaltney was

fully in compliance at the time suit was

brought. In fact, unlike the wide open

jurisdictional rule proposed by

plaintiffs, a more moderate rule --

permitting citizen suit penalties for past

violations only as to those parameters!

for which a discharger is currently in

Violation (a variation on the rule adopted

by the First Circuit) -- would create an

1. NPDES permits are drawn in terms of

the designated pollutants, or parameters,

included in the discharge stream, and set

separate and independent limitations for

each parameter. 33 U.S.C. §1342(a). 40

C.F.R. §122.

even greater incentive to compliance.

What is at issue in this case is not

compliance, then, but a question of the

proper role of "citizen enforcers" under

the statutory scheme, and whether they may

be allowed, on the basis of this public

right of action, in various respects to

realize private benefits from 4

discharger's past non-compliance.

The enforcement provisions of the Act

follow two tracks -- the prospective

track, intended to abate current pollution

and to ensure, by injunctive relief and

the threat of penalties, its continued

future control; and the _ retrospective,

intended to apply civil penalties as a

punitive measure for past violations.

That a citizen plaintiff is authorized to

exercise the prospective enforcement power

is clear. But to grant to citizen

plaintiffs on with their varied

environmental priorities, their differing

technical capabilities, and the dangerous

potential for self-interest in the outcome

-- authority to exercise the punitive

aspect of the statute, is both improper

under the Act and unwise public policy.

Congress quite clearly intended the

role of these "citizen enforcers" to be

one of providing a secondary line of

defense, to protect ithe public

environmental interest against present and

prospective harm when the agency has

failed to do _ so. Instead, plaintiff

organizations have become little more than

bounty hunters, using the statute's

punitive measures and the federal courts

as a means of advancing principally their

own private interests.

The private interests of the plaintiff

organizations are very clearly served by

these suits. The threat of penalties for

past violations has allowed plaintiff

organizations a significant measure of

unjust enrichment, by "contributions" in

lieu of civil penalties, and by

substantial ettorneys fees.

Citizen plaintiffs were never intended

to possess the same enforcement powers

under the Act as does the Administrator.

While a plaintiff organization may surely

use the Act as shield -- in prospective

fashion to help in the protection of the

public environmental interest -- its use

as sword must properly be reserved to the

Administrator, whose choice of punitive

sanctions, their subject and their extent,

may not be colored by a private interest

in the outcome.

SUMMARY OF ARGUMENT

The Clean Water Act is so structured

as to create a two-tiered enforcement

authority. Primary enforcement authority

is vested in the Administrator and the

States. Citizen suits are intended only

to provide supplementary and limited

enforcement. The language of the citizen

suits provision specifically limits

jurisdiction to instances of present

Violations. The legislative history makes

clear that Congress intended that citizen

plaintiffs be authorized to enforce the

Act only in prospective fashion, to abate

present violations and employ the civil

penalty sanction to ensure that compliance

is achieved and maintained.

Congress also plainly intended to

enact a citizen suit provision whose use

would be restricted by the absence of any

incentive to sue other than the protection

of the public health and welfare. There

nes, over the past four years, been a

sudden and dramatic increase in citizen

suits under the Act. The increase is the

product not of any change in the statute,

but of a judicial interpretation of the

citizen suit provision to permit suit for

civil penalties for past violations, in

the absence of any current violation. The

pattern and practice of these cases

indicate that the opportunity for private

gain to plaintiff organizations is their

principal motivating factor. Such

practice contravenes the manner in which

Congress intended the _ citizen suit

provision to be read.

The citizen suit provision must be

interpreted to require a current violation

in order to support jurisdiction. The

"good-faith allegation" rule is based upon

an analogy which is inappropriate. The

proper interpretation is that a citizen

*-

plaintiff may bring suit against any

person who is in fact in violation of the

statute at the time suit is file. Civil

penalties, including penalties as to ~ 7%

violations of any parameter for which the

defendant is currently in violation, would

be among the available enforcement tools.

ARGUMENT

I. THE CLEAN WATER ACT CREATES A

STATUTORY SCHEME WHICH UMTS CITIZEN

SUITS TO ABATEMENT OF PRESENT

VIOLATIONS.

A. The Structure of the Act Gives

Primary Enforcement Authority to

the Government.

"Primary enforcement responsiblity

under the Act lies with the states and the

Administrator" of EPA. Hamker v. Diamond

Shamrock Chemical Co., 756 F.2d 392, 395

(5th Cir. 1985). Citizen suits are

intended to play only a supplemental,

secondary role.

-10-

The Act assigns the Ac ninistrator and

the states to the front line of the

enforcement effort. As the Senate Report

on the Clean Water Act noted, “The

Committee intends the great volume of

enforcement actions to be brought by the

State." S. Rep. 414, 92d Cong, ist Sess.

at 64, reprinted in 2 A Legislative

History of the Water Pollution Contro!

Amendments of 1972 at 1482 (1972)

(hereinafter “Leg. Hist."). "States

desiring to administer their own permit

programs must demonstrate that state

officials possess adequate authority to

abate violations through civil or criminal

penalties or other means of enforcement.

§402(b)(7), 33 USC §1342(b)(7)."

Middlesex County Sewerage Authority v.

National Sea Clammers Association, 453

U.S. 1, 13 (1981).

The statute gives the Administrator

even greater authority, both to enforce

-ll-

Scant

the Act and to supervise’ state

enforcement. EPA may issue compliance

orders to violators, 33 U.S.C. §1319(a)

(1977), and may sue for “appropriate

relies," including injunctions and civil

penalties. §1319(b). The Attorney General

or U.S. Attorney may criminally prosecute

violators. Under the recent amendments to

the Act, EPA can exact administrative

penalties of up to $25,000 per day. Water

Quality Act of 1987, Pub. L. 100-4,, 101

Stat. 7, §314 (19867).

This elaborate enforcement structure

is “supplemented” by citizen suits of a

“limited nature." Middlesex County, 453

U.S. at 14, 17 n. 27. The supplementary

and secondary role of citizen suits is

demonstrated by the terms of the Act. At

least 60 days prior to the filing of a

citizen suit, the EPA, the state, and the

alleged violator must be notified. A

citizen suit is barred by the prior filing

-12-

of a complaint by the Administrator or by

a state. 33 U.S.C. §1365(b). Citizens

are permitted to sue only “if the Federal,

State, and local agencies fail to exercise

their enforcement responsibility ... ."

2 Leg. Hist. 14862.

B. The Statutory Language Creates

Citizen Suit Jurisdiction Only As

To Current Violations.

1. On its Face the Statute

Requires a Showing of

Present Violation.

The Clean Water Act provides for

federal jurisdiction over citizen suits

against a private party “alleged to be in

violation" of an effluent standard or

limitation. 33 U.S.C. §1365(a)(1). This

jurisdictional requirement is stated in

the present tense.

The Fifth Circuit Court of Appeals has

provided the clearest ruling on the issue,

in Hamker v. Diamond Shamrock Chemical

Co., 756 F.2d 392, 395 (1985):

-13-

By its ordinary meaning, the

language of §1365 requires an

allegation of an ongoing violation . .

- +» Hamker asserts that "to be in

Violation oof" means "to have

Violated"; however this interpretation

obviously strains the grammar of the

Statute and diverges from its or

meaning. "(Section 1365) does not

provide for suits against parties

alleged to have violated an effluent

standard or limitation in the past. .

. Ev v. Kent

, Gert. den., 444 U.S.

1025 (1980) (cited w approval in

1c cies es ti A

Where the language of a statute is

plain on its face, the courts must apply

that language, and not re-fashion the

wording according to their own perception

of what Congress meant to say. Consumer

Pr t af Ve GTE

Sylvania, 447 U.S. 102, 108 (1980).

The Hamker position is supported by

decisions of this Court in Middlesex

County and of the Seventh Circuit in City

of Evansville, supra. Both cases

presented claims for damages pursuant to

-~14-

an implied private right of action under

the Clean Water Act. The analysis

necessarily demanded an examination of the

nature and adequacy of the remedies which

the Act expressly does provide. Both

courts noted the statute's explicit

limitations on citizen suits. The citizen

suits provision “allows suits under the

Act by private citizens, but authorizes

only __prospective relief," Middlesex

County, 453 U.S. at 6 (emphasis supplied) ;

and permits private citizens “to sue for

injunctions to enforce" the statute. Id.

at 14. The structure of the Act and its

legislative history underscore "the

limited nature of the citizen suits being

authorized." Id. at 17, n. 27. Accord,

City of Evansville, 604 F.2d at 1014.

The conclusion of the Court below

in the instant case, that the language of

the Act can be construed to permit suits

for purely past violations, has also

-15-

recently been rejected by the First

Circuit Court of Appeals. The Court below

reasoned that a defendant “continues to be

‘in violation' by having ‘violated,'”

analogizing the case to that of a taxpayer

who underpaid in only one year. 791 F.2d

304 at 309. The analogy, however, fails.

[I1}m the case of the taxpayer, the

Violation was the non-payment, and it,

of course, continued until the

discharge Gece” aut neestnns

Moreover, the "violation" defined by

the statute is not the non-payment of

the penalty.

Pawtuxet Cove Marina, Inc. v. Ciba-Geigy

Corp., 807 F.2d 1089, 1092 (ist Cir.

1986). The First Circuit concluded that

the Act unambiguously restricts citizen

Suits to prese..t violations, “particularly

when it would have been so easy for

Congress to have said ‘has violated,'

instead of ‘is in violation’ if the former

was its intention, and with the difference

being so conspicuous." Id.

Moreover, the 60-day notice

requirement also implies that the alleged

violator may avoid suit by achieving

compliance. As the Hamker Court noted,

§itt is most reasonable to read the

requirement that notice also be given

to the alleged violator as an

indication that where the violator

responds to the notice by bringing

himself into compliance, the citizen

loses the right to bring suit under

§1365(a), just as he loses the right

to commence an action where the

diligently prosecuting an action

against the alleged violator.

756 F.2d at 396.

2. Jurisdiction Under the

Citizen Suit Provision is

Not Analogous to

Jurisdiction Over

Governmental Enforcement

Actions.

The Court below accepted the argument

that the Clean Water Act draws no relevant

distinction between citizen suits and

government suits invoking federal court

jurisdiction against violations. Since

the United States can surely sue for

-1?-

penalties for purely past violations under

33 U.S.C. §1319(b), the argument goes.

citizens must also have the same authority

under §1365. 791 F.2d at 309-310.

not, however, entirely clear, at least

under the explicit terms of §1319. The

Act provides only for jurisdiction over

suits by the Administrator “for

‘ppropriate relief, including a permanent

or temporary injunction for any violation

for which he is authorized to issue a

compliance order....* 33. COW. S..C.

$1319(b). Throughout §1319 the language

is explicitly drawn in terms of

prospective relief.

But the Administrator may

appropriately be deemed to hold implicit

enforcement authority under the Act as

well, and it is in this important regard

that the direct comparison between his

-18-

power and that of citizen plaintiffs

breaks down. As the primary enforcer of

the Act, the Administrator may be held to

possess whatever reasonably im plied

enforcement authority is necessary to

achieve the statutory goals. That

authority has been held to be broadly

construed to stlestaate the purposes of

the Act. Environmental Defense Fund v.

Costle, 657 F. 2d 275 (D.C. Cir. 1981)

(holding that any ambiguities as to the

Administrator's enforcement powers are to

be resolved in his favor). When the

federal government sues to enforce the Act

with civil penalties, the suit is

"commenced by the United States," see,

e.g., U.S. v. Earth Sciences,Inc., 599

F.2d 368 (10th Cir. 1979).Federal

jurisdiction lies not under §1419 of the

Clean Water Act, but under 26 U.S.C. §1345

which grants jurisdiction over cases

commenced by the U.S.

-19-

No such implied right of action

exists, however, for citizen plaintiffs,

whose enforcement role is plainly limited

and secondary under the Act. This Court

has previously held that, "the remedial

devices provided in" the Clean Water Act

"are sufficiently comprehensive . . . to

demonstrate congressional intent to

preclude the remedy of suits under Sec.

1983." Middlesex County, 453 U.S. 1, 20

(reversing National Sea Clammers

Association v. New York, 612 F.2d 1222 (3d

Cir. 1980), which had held that the

district courts have federal question

jurisdiction under 28 U.S.C. §1331 over

citizen suits). Given the carefully

crafted special jurisdictional grant of

the citizen suits provision in the Clean

Water Act, this Court held there to be no

extra-statutory right of action on the

-20-

part of citizen plaintiffs, analogous to

the Administrator's implicit and broad

enforcement authority.

The statute itself seems to support

this result, as it impliedly recognizes

the Administration's authority to render

post hoc "findings" of violation, an

authority not reflected in the citizen

suit provision. 33 U.S.C. §1319(a)(1);

and see, Senate Consideration of the

Report of the Conference Committee,

October 4, 1972, reprinted in 1 Leg. Hist,

at 174 (1973) (Administrator's duty to

determine whether a _ violation "has

occurred"); 118 Cong. Rec. 33,693.

3. The Legislative History

Demonstrates Congress's Intent to

Limit Citizen Suits to Abatement

of Current Violations.

Congress intended in the Clean Water

Act to write a statute whose meaning would

-21-

be clear on its face. "(W]e have tried in

this legislation not to leave the final

evaluation of the bill to legislative

history, but instead to write into law as

clearly as possible the intent of the

Congress." Remarks of Sen. Muskie during

Senate debate, 1 Leg. Hist., Vol 1 at

163-164 (1973).

While the statutory language speaks

clearly, the legislative history further

underscores Congress's intent to authorize

citizen suits only to "abate" ongoing

violations of the Act. The purpose of the

citizen suits provision was described as

permitting citizens to "seek compliance .

+ + with the Act," Water Pollution Control

Legislation Hearings Befor the

S ttee on Wa of

the Committee on Public Works, United

States Senate, 92d Congress, ist Sess.,

-22-

——— i, oh ek

Serial No. 92-H9 at 109; "to abate a

violation,” id. at 114; and to sue “for

the purpose of abating pollution," Id. at

707 (comment of Sen. Eagleton). Accord, S.

Rep. 414, 92d Cong., Ist Sess. at 79-81,

reprinted in 1972 U.S. Code Cong. & Ad.

News, vol. 2 at 3745 ("USCCAN") and in 2

Leg Hist. at 1482, 1497; 1 Leg. Hist. at

220-221. “Abate” means “to put an end to."

Webster's New World Dictionary, p- 2

(1976).

4. The Legislative History

Demonstrates That Congress

Intended Not To Create a Private

Incentive to Sue.

The legislative history also

demonstrates that Congress intended to

avoid creating a citizen suits provision

which might be used as a source of private

gain. Civil penalties payable under the

Act -- $10,000 per day of violation,

recently amended to $25,000 --

-23-

required to be paid to the U.S. Treasury,

rather than to a private plaintiff. 1

Leg. Hist. at 674. Report of the Senate

Public Works Comm. at 79, 2 Leg. Hist. at

1497. "“(A)_ citizen can obtain an

injunction but cannot obtain money damages

for himself." 1 Leg. Hist. at 220-21

(comment of Sen. Bayh); see also,

Middlesex County, 453 U.g. 1, 11.

Permitting citizen suits for past

violations would defeat this Congressional

intent:

If §1365 were interpreted as

permitting citizen suits for civil

penalties for past violations, all

state damage claims which could be

brought under pendent jurisdiction

could be litigated in a federal forum,

thus undermining congressional intent

to limit the burden on the district

courts. Since the Act provides for

awards of attorney's fees and

expenses, there would be a substantial

incentive to bring suit under the Aci

rather than in state court.

Hamker 756 F.2d at 396. The Fifth

Circuit was concerned with the threat of

pendent state damage claims, but the same

-24-

principle applies in the present case.

Plaintiff organizations have used suits

for past violations to obtain substantial

settlement payments and attorneys fees.

This is precisely the sort of private

incentive to sue that Congress meant not

to create.

The first citizen suits provision was

in the Clean Air Act of 1970. It was the

model for the Water Act version. It was

also the subject of extensive debate over

fears that it would be abused to clog an

already congested federal court system.

R. Schwartz & D. Hackett, Citizen Suits

Against Private Industry Under the Clean

Water Act, 17 Nat. Res. Lawyer 327 at

lie ate

328 (1984). Some Conyressmen expressed

concern about frivolous or harassing

suits, duplicative litigation, EPA

enforcement decisions being overridden by

citizen suits, and inconsistencies in

enforcement policy. Id. at 328-29. In

~_

response Senator Hart pointed out that the

inability of plaintiffs to collect damages

would limit the number of suits filed.

Id.

The addition in th Clean Water Act of

the provision empowering the Courts to

assess “any appropriate civil penalties"

was not discussed in the legislative

history, Schwartz & Hackett at 331, except

to specify that any such penalties be paid

into the federal Treasury. Congress

considered and specifically rejected the

option of allowing citizens to collect

part of the penalties. 1 Leg. Hist. at

220-21 (comment of Sen. Bayh); and see,

Report of the Senate Public Works Comm. at

79, reprinted in 2 Leg. Hist. at 1497.

This Court has recognized, as has the

Fifth Circuit in Hamker, that “one of the

primary congressional purposes behind

limiting citizen suits was to preclude the

possibility that §1365 suits would place

-26-

an undue burden on the federal courts."

Hamker, 756 F.2d at 3¥9b.

1 OCP

[T]he legislative history of the

[Clean Air] Act contains explicit

indications that private enforcement

suits were intended to be limited to

the injunctive relief expressly

provided for. Senator Hart, for

example, stated:

"It has been argued, however, that

conferring additional rights on the

citizen may burden the courts unduly.

I would argue that the citizen suit

provision of §1358 has been carefully

drafted to prevent this consequence

from arising. First of all, it should

be noted that the bill makes no

provision for damages to the

individual. It therefore provides no

incentives to suit other than _ to

rotect the health and welfare o

those suing and others similarly

situated. It will be the rare, rather

than the ordinary, person, I suspect,

who, with no hope of financial gain

and the very re prospect of

financial loss, will initiate court

action under this bill." 116 Cong.

Rec. 33104 (1970).

ne A er ea eR. ct Mi, AB a a

£1 et EO ee ay ME

—_— ss

ae.

Middlesex, 453 U.S. at 17, n. 27 (emphasis

supplied). It was this measure,

incorporated in the Clean Water Act, which

Senator Muskie recog nized as a

"restrictive" citizen suits provision.

:

|

|

:

3

:

:

7

7

Schwartz & Hackett, at 330. See also,

-27-

Hamker, 756 F.2d at 396 (availability of

citizen suit for civil penalties for past

violations, because Act allows for

attorneys fee awards and expenses, would

undermine congressional intent to limit

actions to those brought solely to protect

health and welfare).

Il. THE CURRENT PATTERN OF USE OF

CITIZEN SUITS DEMONSTRATES THAT THE

BROAD JURISDICTIONAL READING PROPOSED

BY THE PLAINTIFFS IS AT VARIANCE WITH

THE INTENT OF CONGRESS.

The experience of the federal courts

since 1983 underscores that the expansive

reading of the statute adopted by the

Fourth Circuit and other courts has

generated an enormous increase in citizen

suit litigation. Such litigation is

motivated by the likelihood of substantial

windfall financial benefits to plaintiff

organizations, both from the pattern of

out-of-court settlements which has

developed, and from the availability of

attorneys fees.

-28-

A. There Has Recently Been a

Prolific Increase In Citizen

Suits Under The Act, Largely

As a Result of The Statutory

Interpretation Which Is At

Issue Herein.

For the first ten years, from its

enactment in 1972 the citizen’ suits

provision of the Clean Water Act was

rarely used. During the four years from

1978 through 1981, for example, on average

fewer than five such suits per year were

filed nationwide. Env'l L._ Institute,

Citizen Suits: An Analysis of Citizen

Enforcement Actions Under EPA-Administered

Statutes ("ELI Study") III-10, 27, 29.

Beginning on September 17, 1982, with

the filing of a group of 15 by one law

office (variously on behalf of Sierra

Club, NRDC, NJPIRG, and Friends of the

Earth) the number of suits has increased

dramatically. EPA, is entitled by law to

receive a copy of each Notice of Intent to

sue, 33 U.S.C. §1365(b)(1)(A);

-29-

but from the experience of the amicus, its

records are incomplete. They do, however,

reveal that in the past four years at a

minimum 640 Notices have been filed. See

Table, Appendix A, attached hereto.

It is uncertain precisely what

percentage of these notices have

subsequently been followed by litigation,

as there has been, prior to the 1987 Clean

Water Act Amendments, no requirement that

EPA be notified of the filing of a

Complaint. It is known, however, that at

least 140 have resulted in federal court

Complaints. And if Connecticut is any

guide, the numbers are likely to be even

higher. Of 54 Notices of Intent filed in

Connecticut from 1983 to date, 37 (69%)

have so far led to _ federal court

-30-

litigation. :

The citizen suit Notices have been broadly

distributed geographically, with each of

the- ten EPA Regions and at least 38 states

and the District of Columbia represented.

See Table, Appendix B.

The cause of this sudden and dramatic

increase in citizen suit litigation is

apparent from its subsequent pattern and

practice. The majority of these cases

have been filed by a small group of

plaintiff organizations, for which the

suits have become a substantial

revenue-raising device. Most of the

Notices filed since September of 1982 --

379 of the 648 Notices, or 59% - have

been filed by or on behalf of only six

2. By amother account, of the 108

citizen suit notices filed in 1983 alone,

62 led to federal court suits, which

together requested approximately $100

million in penalties. Lewis,

"Environmentalists' Authority to Sue

Industry for Civil Penalties Is

Unconstitutional Under the Separation of

Powers Doctrine," 16 Envir. Law Rep.

10101, 10102 (1986).

organizations: Natural Resources Defense

Council, Sierra Club, Friends of the

Earth, Atlantic States Legal Foundation,

Connecticut Fund for the Environment, and

New Jersey Student Public Interest

Research Group. See Table, Appendix A.

There is, of course, nothing per se

improper in so large a share of this

litigation and threatened litigation being

carried on by so limited a cast of

plaintiffs. But the extent of the

plaintiffs’ practice in this area, and the

pattern which it follows, are largely the

product of a judicial interpretation of

the citizen suit provision to permit

jurisdiction for civil penalties for past

violations. The result -- one of vastly

increased litigation, motivated by the

opportunity for substantial private gain

-- is at great variance from the limited

ee ee eee oe

secondary enforcement authority for

citizens which Congress. intended _ to

provide. $

3. The precedent to be_ established

herein will have impact even beyond the

65,000 NPDES permits issued under the

Clean Water Act. Citizen suit provisions

in relevant respects identical to that

found in the Clean Water Act have also

been included in the Resource Conservation

and Recovery Act, (RCRA) 42 U.S.C. §6972

(1984) (penalties of up to $25,000 per day

of violation), .and in the Superfund

Amendments and Reauthorization Act of

1986, Pub.L. 99-499, 206, adding new §310

to the Comprehensive’ Environmental

Response, Compensation and Liability Act

(CERCLA), 42 U.S.C. §9601, et seq. (1980),

(penalties of up to $25,000 per day of

violation for a first offense, and up to

$75,000 per day for subsequent offenses).

-33-

B. Penalty Claims for Past

Violations Are A __ Significant

Factor In The Increased Number of

Citizen Suits.

There is little question that

jurisdiction over past. violations --

whether in the absence of, or in

conjunction with, present violations -- is

a major element of the great majority of

citizen suit Notices and litigation.

Due to the difficulty of obtaining

complete information, it is impossible to

State a precise total of those citizen

Suit claims which relate, as in the

instant case, to purely past violations.

Several relevant points can be ade,

however, from the available information.

More than 20 claims based on purely

past violations have thus far reached the

Stage of reported decisions. Petition for

Writ of Certiorari at 22, n.15. The

numbers of those brought and unreported,

settled, or still pending are likely to be

considerably higher.

-34-

A review of the EPA files reveals that

a significant number of Notices relate to

purely past violations. Furthermore, a

vast majority of the claims of violation

made in virtually every Notice relate to

permit parameters for which the defendant

is in full compliance at the time the

notice is filed.

Discharge Monitoring Reports, which

are the source documents for the Notices,

must be filed monthly with EPA. The time

lag between the filing of a DMR and its

availability to the public through EPA is

commonly about one month. Chesapeake Bay

Foundation and Natural Resources Defense

Council v. Gwaltney of Smithfield, Ltd.,

611 F.Supp. 1542, 1549 (E.D. Va. 1985).

Even allowing, for the sake of argument,

up to four morths as a lag time by which

to distinguish claims of current

-35-

violations from past violations, it is

apparent that a significant proportion of

the Notices concern purely past

violations. Of the 353 Notices received

from EPA which set forth the dates of

violations, 281, or 80%, fail to allege

any violations within three months prior

to the date of Notice.

Among the remaining 72 Notices, even

when a claim of an arguably "current"

(within four months) violation is included

in a Notice, on average 75% of the

violations alleged are_ still for past

violations on parameters for which the

defendant is, at the time of the Notice,

in full compliance. See Table, Appendix

C.

That this litigation drive is

generated by the jurisdictional finding at

issue herein may also be inferred from an

éxamiviation of the courts in which these

cases have been filed. Of the 377 Notices

-36-

filed by the six active environmental

groups since 1982, 234 (62%) have been

filed in jurisdictions which have held

that such suits can be brought for civil

penalties for purely past violations.

Only 39 have been filed in jurisdictions

which have rejected this theory, and of

those, all but two were filed in Texas or

Louisiana prior to the decision in Hamker.

No suits have been filed by the above

environmental groups in the Fifth Circuit

since Hamker or. in the First Circuit since

Pawtuxet Cove. If present violations were

a more significant motivating factor, one

would expect a more evenly distributed

pattern of filings.

C. Citizen Suits For Civil Penalties

For Past Violations Are Used For

Substantial Private Gain.

Far from displaying the public

environmental concern which Congress had

intended would be the only incentive for

such suits, the current pattern and

-37-

practice of those groups _ primarily

responsible for the upsurge in Clean Water

Act citizen suits instead appear to

demonstrate a far more_ privately-

interested motivation. The availability

of steep civil penalties for what is an

easily proved strict liability offense, in

addition to an award of attorneys fees,

almost invariably induces an out-of-court

settlement on terms extremely advantageous

to the plaintiff organizations. It is the

judicial extension of citizen suit

jurisdiction to past violations which has

made this practice so lucrative, as there

is nothing that defendants, having already

achieved compliance, can do to cut off

plaintiff's right of action.

The prosecution of a citizen suit for

a past violation is relatively simple and

straightforward. Holders of NPDES permits

under the Act are required to monitor

their effluent discharges and to file

monthly Discharge Monitoring Reports. 33

-38-

U.S.C. 1318(a)(3)(A); 40 C.F.R.

122.41(1)(4). These DMRs are public

records, and are typically the source

documents for claims of violation. ELI

Study at I-7, V-2, V-12. Courts have

generally ruled that the DMRs constitute

admissions, and some have held that they

provide conclusive evidence of violation

of the statute's strict liability

standard. Student Public Interest

Research Group of New Jersey v. Jersey

]

Centrali Power Co., 642 F.Supp. 103 (D.N.J.

1986).

The courts which have allowed suit for

past violations have generally borrowed a

five-year statute of limitations.’

4. While occasional courts have held

there to be no statute of limitations for

such actions, and have therefore permitted

plaintiffs to go bac indefinitely ,

Student Public Interest Research Group of

New Jersey Vv. Tenneco Polymers, 602

F.Supp. 1394 (D.N.J. 1985); the more usual

rule is to imply the general federal

penalty statute of limitations of five

years. 28 U.S.C. 2462. Atlantic States

Legal Foundation v. Al Tech Specialty

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

1986), and cases cited.

-39-

The statute, as recently amended,

sets a civil penalty of "$25,000 per day

for each violation," 33 U.S.C. 1319(d),

and some courts, including the Court below

in the instant matter, have interpreted

that provision to permit an assessment of

up to thirty times the daily maximum for

violation of a single monthly average

limitation (i.e., $750,000). 791 F.2d at

313-15. Given the severity of the

potential penaity, plus attorneys fees and

costs to the plaintiff, and given the

unavailability of virtually all _ legal

defenses, a defendant whose DMRs display

even the slightest violation during the

previous five years is likely to be

disposed to settlement.

The settlement terms proferred by the

plaintiff organizations provide further

demonstration that the current tactic

diverges significantly from Congress's

-40-

intended result.

As a starting point, the environmental

groups frequently inform _ target

companies that their settlement goals

include entry of a consent decree

containing the following provisions:

1. civil penalties or alternatively,

a contribution of a comparable amount

to an environmental project located in

the same state,. . «+ +»

4. reimbursement for the plaintiffs’

attorney's fees and litigation costs.

Schwartz & Hackett at 328 (1984). See J.

Miller, Private Enforcement of Federal

Pollution Control Laws Part III, 14 Envtl.

L. Rep.( Envtl. L. Inst.) 10407, 10426

(1984).

Consent decrees in citizen suits

brought by environmental groups have

typically included payments of up to

$1,500,000 as "contributions" to

environmental organizations in lieu of

-41-

civil penalties to the U.S. Treasury.”

The agreement may also provide for a

schedule of penalties in the event that

the defendant violates the consent decree.

In some instances, the plaintiffs

themselves, or closely related

organizations, have been the beneficiaries

5. E.g., Chesapeake Bay Foundation &

Natural Resources Defense Council v.

Bethlehem Steel cae: No. Y-84-1620 (D.Md

Feb. 16, 1987 1,500,000 to unspecified

environmental organizations in the

Chesapeake Bay area, plus $500,000 to CBF

and NRDC for “costs and fees"); Sierra

Club_v. Keystone Automotive Plating Co.,

($400,000 to the Nature Conservancy) ;

Student Public Interest Research Group of

New Jersey Vv. en ustries

No. 83-1604 D.N ode Nov. 16, 1985)

($100,000 to the Passaic River Coalition);

Sierra Club v. Aluminum Company of

America, 585 F.Supp. 6842 (N.D.N.Y. 1984)

(consent decree Oct. 5, 1984) ($87,400 to

the Adirondack Historical Association).

-42-

-

of these payments. See Table, Appendix

p.°

In addition, the consent agreements

usually provide for substantial attorneys

fees and other litigation charges to be

paid to the plaintiff organizations. Such

fees sometimes exceed the amount of the

6. E.g., Sierra Club and _ Natural

Resources Defense Council v. Interpace

Corp., No. 83-0127C (W.D.N.Y., Feb. 14,

1983) ($25,000 for environmental projects

selected by plaintiffs); Sierra Club v.

Phili s ECG, No. 83-52T (W.D.N.Y. Jan. 25,

1983: 15,000 to be used by Sierra Club

for projects of its choice relating to

Seneca River); Connecticut Fund for the

Environment and Natural Resources Defense

Council v. Brid Brass Com , No.

H-84-955 i toe Oat. 23, 1584) $30 ,000

in an unrestricted contribution, plus up

to $86,000 more in noncompliance

penalties, to the Open Space Institute, an

organization with the same address as the

NRDC, and some of whose principals are the

same as those of NRDC. ELI Study at

IV-15).

~43-

penalty or "contribution." ,

A comprehensive nationwide picture of the

pattern of citizen suits and_ their

settlement is difficult to provide. But a

view of those notices filed in Connecticut

is at least instructive, and may be

representative of the nationwide practice.

The sudden upsurge of citizen suit

activity in Connecticut began in

September, 1983, with the filing of 21

Notices of Intent to sue. The Notices

were filed jointly by the Connecticut Fund

for the Environment ("CFE") and the

7. E.g., Student Public Interest Research

Grou New J and Natural Resources

Defense — v. Jel. Baker Chemical

Co., No. 83-685, (D.N.J., Jan. 19, 1984)

($10,000 civil penalty payable to U.S.

Treasury and $29,000 in attorneys fees and

other costs payable to plaintiffs); Hudson

River Sloop Clearwater __and_ _Natural

Resources Defense Council v. White Mo

Wringer Co., No. 82-CV-1306 (N.D.N.Y.,

June 12, 1984) ($15,000 to Open Space

Institute and up to $23,000 attorneys fees

and other litigation expenses).

-44 -

Natural Resources Defense Council

("NRDC"), and, except for the recitation

of the particulars of the discharges,

locations, and dates which allegedly

violated the Act, the format and language

of each notice is identical.

From 1983 through the present date,

54 notices are known to have been filed in

‘Connecticut, 47 of which have been filed

by CFE and NRDC. Of those 47 Notices

filed, two have gone to judgment on the

merits.° Three are still pending. The

remaining 42 have been settled, 8 prior to

the filing of a Complaint and the other 34

after suit had been instituted.

8. CFE and NRDC v. Job abe Co., 623

F.Supp. 207 (1985), Motion for Summary

Judgment decided in favor of plaintiffs on

Sept. 27, 1985, on basis that jurisdiction

is available for civil penalties for

purely past violations, settled for

$77,500 after Court referred parties to

Gwaltney lower court ruling for

plaintiffs; CFE and NRDC v. Contract

Plating Co., 631 F.Supp. 1291 (1986),

citizen suit barred by State's diligent

prosecution of prior suit.

-45-

According to a recent newspaper

accounting, the settlements of the 28

litigation cases in Connecticut have

netted at least $916,500 in environmental

contributions in lieu of penalties, and an

additional $484,250 in attorneys fees to

2 ‘See Table,

the plaintiff organizations.

Appendix F. Figures for the 10 matters

settled prior to suit are not known.

The private interests of the

plaintiff organizations are very much at

stake in this practice. Settlements have

called for substantial “contributions" in

lieu of penalties to the U.S. Treasury, a

9. D.P. Jones, “Activists Pressure

Polluters", Hartford Courant, October 6,

1986, p. 1, quoting counsel for CFE.

-46-

practice the Government finds

objectionable. 10

And for those litigating

environmental organizations with attorneys

on staff, the significant attorneys fees

usually included in these settleme:ts,

based not upon a salary rate but upon

prevailing hourly rates, SPIRG v. AT&T

Bell Laboratories, 24 Env. Rep. Cas.

10. In an amicus brief filed in Student

Public Interest Research Group of New

Jersey v. Monsanto, 600 F.Supp. 1474

(D.N.J. 1985), the United States argued

that an environmental plaintiff which

settled a citizen suit for a payment to

itself could be considered in violation of

the Miscellaneous Fees Act, 31 U.S.C.

§3302(c), which requires "[a) person

having custody or possession of public

money" to deposit it in the Treasury.

Brief, at n. 31.

Even if the recent provision of the

1987 amendments, requiring notice to the

Attorney General of any proposed consent

judgment, P.L. 100-4, s. 504, (1987),

serves to interrupt this practice as to

cases filed in court, it will have no

effect on those cases which are settled

prior to the actual filing of a Complaint.

-4 7-

1986), (D. N.J. 1986) is an additional

private benefit. !?

11. There is another very real, if by

itself unobjectionable, private

organizational interest also rewarded.

The mere fact of bringing the litigation

becomes a promotional tool by which to

increase the organization's membership.

The point is not that such practice is in

any respect wrong, only that it creates a

further "private benefit" incentive to

such litigation, a result Comgress did not

intend.

-48-

D. Such Use of Citizen Suits

Interferes With The Statutory

Scheme.

The enforcement powers of the EPA and

its delegated state agencies granted by

the Act include both injunctive relief and

penalty provisions. The ultimate goal of

the statute is to eliminate the discharge

of pollutants. 33 U.S.C §1251(a)(1). The

NPDES permitting system regulates

discharges to achieve interim water

quality goals.

In carrying out its responsibility to

achieve the statutory goals, a regulatory

authority must have the discretion to

choose to forego the imposition of a

penalty as a means, whether informally by

discussion or more formally by

consent order, to persuade a more

immediate, comprehensive, or far-reaching

corrective measure. To allow private

citizen groups to pursue an enforcement

-49-

option which the agency, in the exercise

of its responsibility to achieve

compliance, may have agreed to waive, is

both impermissible under the Act and

unsound public policy. It interferes with

the agency's flexibility to negotiate

solutions beyond bare compliance, and it

creates a severe burden on the federal

courts by leaving litigation as the only

means to _ resolve a_ violation with

finality.

The threat of penalties for any

current violation, enforceable by _ the

agency or by any citizen, is sufficient

incentive to achieve minimal compliance.

But it is the agency's power to seek

penalties for past violations, or to waive

that right, which enables it to

influence settlements providing, as in the

instant case, for new _ state-of-the-art

treatment systems which go beyond the bare

minimum of compliance with the permit

terms.

-50-

The court below found some

significance in the argument _ that

authorizing citizen suits for past

violations would have a_ beneficial

deterrent effect on other violators.

791 F.2d at 309-10. In fact, however, it

is likely to have somewhat the reverse

effect, by reducing the incentive to

comply.

If citizen suits are _ limited’ to

current violations, a discharger has a

stronger incentive to achieve compliance

quickly. Compliance would cut off a

citizen right of action, and would avoid

penalties for both past and future

violations, rather than only for future

violations. Limiting citizen suits to

ongoing violations provides the greater

marginal deterrence, and thus the greater

incentive to compliance.

-51-

Ili. UNDER THE CORRECT JURISDICTIONAL

RULE, A CITIZEN SUIT IS AVAILABLE

ONLY IF THE ACT IS IN FACT VIOLATED

AT THE TIME SUIT IS FILED.

A. The Jurisdictional Test Should

Reflect the Factual Standard For

Injunctive Relief.

Of major concern to the courts below

has been that if citizen suits are

restricted to abatement of present

violations they may be excessively limited

"as a tool of enforcement and deterrence."

791 F.2d at 313. An intermittent, or

"chronic episodic" violator, whether

deliberate or not, may evade the Act's

enforcement provisions. Gwaltney, 611

F.Supp. 1542, at 1548. Because the courts

below could see no clear standard by which

to distinguish between an _ intermittent

violator and an ex-violator, they rejected

the rule adopted in Hamker.

-52-

However, the problem of the deceptive

or “chronic episodic" violator was more

properly addressed in Judge Williams's

concurrence in Hamker:

- « « [T]he requirement that the

polluter be “in violation" clearly is

broad enough to cover the chronic

episodic violator or the violator who

intentionally “turns off the spigot"

just before a citizen brings suit. In

either of these circumstances, the

statute should surely be interpreted

to cover such violations as being

current. 756 F.2d at 399.

The First Circuit in Pawtuxet Cove

has provided a further refinement that

strengthens the argument for the Hamker

rule, by offering a standard to determine

which violations are "current":

If a defendant's history of past

violations is such that it is

reasonable to believe that misconduct

will continue, not only is_ it

reasonable to allege aé_ continuing

violation, but this is precisely the

showing that would induce a court to

issue an injunction.

- « « In reviewing actions under

this standard, the district court

should consider, among other things,

the isolated or recurrent nature of

the infraction, the degree of scienter

on the part of the defendant, and the

sincerity of its assurances against

-53-

future violations.

Pawtuxet Cove, 807 F.2d at 1094.

The legislative history supports the

application of parallel standards for

jurisdiction and for injunctive relief in

such suits because they are designed for

the same purpose. As the First Circuit

itself said in Pawtuxet Cove:

The Clean Air Act, from which the

Clean Water Act took the phrase "is .

- ein violation,” see 42 U.S.C.

§7604(a), provided for injunctive

relief only. .. . [E)ven when in

enacting the Clean Water Act, Congress

added penalties, such were to go to

the government. There was no change

in purpose. Rather, House and Senate

eports on the Clean Water Act

characterize the addition of civil

penalties as simply a modification of

the citizen's action for injunction

authorized under the Clean Air Act. .

- « ([P)ast permit violations are

relevant to the extent that they cast

light on the propriety of an

injunction, no longer appropriate if

there is no longer a permit.

Pawtuxet Cove at 807 F.2d at 1092-1093,

(emphasis supplied).

The standard proposed, then, is that

the citizen suit provision be "construed

to comport with the injunctive purpose of

-54-

the Act --[ to provide for federal court

jurisdiction over] conduct indicative of

continuing or renewed violations

justifying an injunction, as distinguished

from matters over and apparently done

with, that would not warrant one." Id -

The availability of "any appropriate"

civil penalties leads to no different rule

in the application of the Act's

enforcement provisions. Once jurisdiction

obtains, by a "current violation" under

the injunctive standard stated above, then

civil penalties may be ffound-= an

“appropriate” enforcement tool. As part

of a history of recalcitrance, for

12. There may be cases in which the

pollution ceases between the time suit is

filed and the time of the injunction

hearing. In such a case the court would

have jurisdiction, and would consider the

facts at both times, and may impose

penalties without granting an injunction.

-55-

example, past violations may be a valid

consideration in determining the propriety

of injunctive relief and/or a _ civil

penalty.

The NPDES regulations under the Act,

however, and the permits assigned

thereunder, treat each permit parameter as

a separate discharge limitation. 33 U.S.C.

§1319(d), 40 C.F.R. §122. The limit for

each pollutant is distinct, and violation

of one need not in any way implicate the

discharge level of another. Consistent

with this approach, and with the proper

role of citizen enforcers under the Act,

the citizen suit jurisdictional standard

should be applied on a “per parameter"

basis. Jurisdiction over a continuing

violation of one parameter offers no

justification for jurisdiction

Over an entirely unrelated parameter for

which the permittee is in full

compliance. !%

Thus, the First Circuit has stated a

clear and workable standard for

determining whether a_ violation is

"continuing", for purposes of establishing

citizen suit jurisdiction.

13. The 1987 Clean Water Act Amendments

lend further support to this approach, by

revising the penalty rule to read "$25,000

per day for each violation." The new

language would appear to treat violations

distinctly on a "per parameter" basis.

-57-

B. The Jurisdictional Test Should

Be The Actual Fact of a

Continuing Violation, and Not

One of Merely Good Faith

Pleading.

Having presented a clear factual

jurisdictional standard, the Pawtuxet

Court proceeded, without rationale other

than an inapt analogy, to hold that the

test by which the standard is measured is

one of "good faith pleading." Such a

result would seriously undermine the

factual injunction standard, and serves no

practical purpose.

The First Circuit made this shift for

two reasons. First, it wished to avoid

having jurisdiction turn on proof that a

violation was “occurring at the instant of

suit." 807 F.2d at 1093. Second, to

avoid this it seized on the word "alleged"

in §1365(a)(1) to suggest that there need

not be an actual violation at the time

suit is filed so long as one is merely

alleged. The Court analogized the citizen

suit provision to the amount in

controversy requirement in_ diversity

cases. 807 F.2d at 1093.

The analogy, however, is both

unnecessary and inept. It is unnecessary

because the First Circuit's own analysis

of "continuing" violations as those for

which injunctions are appropriate solves

the problem. Jurisdiction need not depend

on proof that there is an_. illegal

discharge at the very instant of suit. A

reasonable likelihood of a current or

future violation, based upon the same

objective factual standard as_ for

injunctive relief, will be sufficient.

And the analogy itself fails because

-59-

the rationale for the amount. in

controversy rule is entirely different

from the rationale for limiting citizen

suits to present violations.

A more appropriate analogy -- to

diversity or to federal question

jurisdiction, for instance -- would lead

to ai different result. Generally,

questions of federal jurisdiction are

questions of fact, not merely of pleading.

Federal courts are courts of limited

jurisdiction; if at any point it becomes

clear that a fact essential to

jurisdiction is absent, the suit must be

dismissed. American Fire & Casualty Co.

v. Finn, 341 U.S. 6 (1951). And see, Land

v. Dollar, 330 U.S. 731, 735 (1947)

(plaintiff has the burden of proving

jurisdictional facts by a preponderance of

the evidence); McNutt v. General Motors

Acceptance Corp., 298 U.S. 178, 184 (1936)

(trial court not bound by pleadings, but

may inquire into jurisdictional facts).

Moreover, even the "jurisdictional

amount" requirement is no exception to the

general rule that questions of

jurisdiction are questions of fact. "Good

faith" is measured objectively, as a

question of fact. "(T]he appropriate

legal test of plaintiff's good faith is

not his subjective state of mind but a

very strict objective standard." Jones v.

Landry, 387 F.2d 102 (5th Cir. 1967).

Where the plaintiff makes an honest error

in alleging that the amount in controversy

exceeds the jurisdictional limits, but

discovery demonstrates that the amount is

certainly less, the suit will be dismissed

for lack of jurisdiction. American Mutual

Liability Ins. Co. v. Campbell Lumber Mfg.

Corp., 32) F.Supp. 1283 (N.D. Ga. 1971).

The plaintiff must prove that there is

in fact a “current violation", within the

broad meaning of that phrase suggested by

-61-

Pawtuxet Cove and the concurring opinion

of Judge Williams in Hamker. Where, at

the time suit is filed, there is in fact

no such "current violation," then neither

injunctive relief nor a civil penalty is

or will be appropriate, and jurisdiction

does not lie.

| CONCLUSION

The broader aspect of this case

concerns what the amicus contends is both

the illegality and the impropriety of the

"vigilante-style" citizen suit litigation

currently being conducted under the aegis

of jurisdiction over past violations. If

such suits are sanctioned by this Court,

they will only increase further in

numbers, as tens of thousands of

permit-holders under three major federal

environmental statutes are subject to the

same citizen suits provision.

The rule of law which would enable

these plaintiff organizations to continue

-6§2-

a.

to pursue their litigation and settlement

campaign is one which will apply to all

plaintiffs. A citizen suit for even a

single minor and technical violation of

the Act five years prior to the filing of

a Complaint will be made possible by the

plaintiffs' statutory reading. Since a

DMR admits liability, and_ since’ the

statute provides a strict liability

standard, $25,900 potential penalty, and

attorneys fees in any event, there is

little if any incentive not to sue for

even the most trivial violation. This is

certainly not the result that Congress

intended.

For the reasons stated above, the

amicus respectfully submits that this

Court should reverse the decision of the

Fourth Circuit below, and hold that the

federal courts lack subject matter

jurisdiction over citizen suits seeking

civil penalties for past violations.

-63-

CONNECTICUT BUSINESS AND

INDUSTRY ASSOCIATION,

Amicus Curiae,

By its attorneys,

Wayne S. Henderson, Esq.*

Patrick W. Hanifin, Esq.

Attorneys for Amicus Curiae

New England Legal Foundation

55 Union Street

Boston, Massachusetts 02108

(617) 367-0174

* Counsel of Record

-64-

Appendix A

CITIZEN SUIT NOTICES BY YEAR

Notices Filed

All By Major

Year Notices Environmental Groups*

1978 1 Unknown

1979 g Unknown

1980 6 Unknown

1981 6 Unknown

1982 17 13

1983 110 88

1984 178 121

1985 135 36

1986 205 119

Totals 667 377

* Natural Resources Defense Council,

Atlantic States Legal Foundation,

Connecticut Fund for the Environment,

Friends of the Earth, Sierra Club,

Student Public Interest Research Group

of New Jersey.

Appendix B

CITIZEN SUIT NOTICES BY EPA REGION

1982-1986

Notices Filed

All By Major

Region Notices Environmental Groups*

I 109 92

I 109 78

III 135 69

IV 54 11

V0 71

v1 72 34

VII 3 0

VIII 2 0

IX 28 11

Xx 23 11

Totals 645 377

* Natural Resources Defense Council,

Atlantic States Legal Foundation,

Connecticut Fund for the Environment,

Friends of the Earth, Sierra Club,

Student Public Interest Research Group

of New Jersey.

1982

1983

1984

1985

1986

Appendix C

PAST VIOLATION CLAIMS

IN CITIZEN SUIT NOTICES

(1982 - 1986)

PER-NOTICE BASIS?

Total Time Lag®> — Time Lag

Notices < 4 Mos. % 4 Mos. + %

3 1 8 12 92

60 10-17 50 83

119 22 «18 97 82

48 14.29 3471

113 2 «22—~CtsBO8

353 72 «20 281 80

PER-PARAMETER BASIS“

Total Time Lag Time Lag

Parameters < 4 Mos. % 4 Mos. + %

'g2-

'86

1.

2.

3.

4288 227 5 4061 95

"Per-Notice Basis" analyzes each

Notice independently, in terms of

most recent claim of violation cited

in Notice.

“Per-Parameter Basis" analyzes each

Parameter independently in terms of

most recent claim of violation of

that Parameter cited in Notice.

"Time Lag" is the period of time

between the most recent claim of

violation and the date of the Notice.

Appendix D

CITIZEN SUIT SETTLEMENTS

1/1/83 - 12/31/86

Connecticut Cases

Notices filed 54

Notices by CFE/NRDC* 47

Suits Filed 37

Suits by CFE/NRDC 37

Settlements 30

Contributions to Open

Space Institute $869 ,500

Payments to CT DEP 67,500

Payment to Middleburg

Land Trust (est.) 12,000

Payments to unknown

recipients 87,000

Payments to U.S. Treasury 0

Sub-total 1,036,000

Payments to CFE/NRDC for

costs/atty. fees 492,036

Total payments $1,528,036

Other Cases (Non-Connecticut)

Known settlements (31)

Payments to U.S. Treasury $723,900

Payments to others** 3, 692 ,050

Sub-total $4,415,950

Known attorneys fee/

costs payments (16) 720 , 488

Total known payments $5,136,438

Total of all known (61)

settlements $6,664,474

* Connecticut Fund for the Environment,

and Natural Resources Defense Council.

** Recipients are usually environmental

organizations, or in few instances

public-sector state or local entities.