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

In the Supreme Court of the

OcTOBER TERM, 1986

GWALTNEY OF SMITHFIELD,

Vv.

CHESAPEAKE BAY FOUNDATION,|

and

NATURAL Resources DereNnse COUNCIL, INC.,

7 Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

eee

BRIEF AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES,

AMERICAN PETROLEUM INSTITUTE,

CHEMICAL MANUFACTURERS ASSOCIATION,

SYNTHETIC ORGANIC CHEMICAL

MANUFACTURERS ASSOCIATION,

AND AMERICAN PAPER INSTITUTE

IN SUPPORT OF THE PETITIONER

Rosin 8. Conran * THRopore L. GARRETT

NATIONAL CHAMBER LITIGATION COVINGTON & BURLING

Center, INc. 1201 Pennsylvania Avenue, N W.

1615 H Street, N.W. P.O. Box 7566

Washington, D.C. 20062 Washington, D.C. 20044

(202) 4163-5397 (202) 662-6000

Counsel for Counsel for Chemical

Chamber of Commerce Manufacturers Association

of the United States KATHERINE L. RAYNE

James K. JACKSON CLEARY, GOTTLIER, STEEN

AMERICAN PETROLFUM & HAMILTON

INSTITUTE 1762 N Street, N.W.

1220 L, Street, NW Wa hington, D.C. 200386

Washington, D.C. 20005 (202) 728-2700

(202) 682-8000 (Counsel for

Counsel for Synthetic Organic Chemical

American Prtrolewm Inatitute Munufacturers Association

Ric HARD WAseERSTROM * Counsel of Record

AMBERICAN PAPER INSTITUTE

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 468-2584

Counsel for

American Pauper Institute

Wheow tree Pamrine Co... Inc. - 788-0086 . Weenineron. 0 C 20001

TIONS ... S66 6S5O6 66S SSSSS SS SSS SSS SSS ST SSS SSS SSS SST Te

A. The Language Of Section 505(a) Circum-

scribes The Availability Of Citizen Suits...

BR. The Authority Conferred Or Citizens Un-

der Section 505 Is Not Coextensive With

The Authority Of The Government Under

C. Penalties In Citizen Suits Are Ancillary To

RECURRING VIOLATIONS ARE NECES-

SARY TO SUPPORT A CAUSE OF ACTION

UNDER SECTION 505 nce

A. The Appropriate Test Is One That Looks To

The Likelihood Of Continuing Violations...

B. Alternative Formulations Do Not Effectuate

The Statutory Purpose _............... on

C. The Allegation of Ongoing Violations In A

Citizen Suit Must Be Factually Supported

To Establish Jurisdiction And The Pilain-

pccoeonl

-

_

10

ll

17

19

TABLE OF AUTHORITIES

CASES

Baughman v. Bradford Coal Co. 592 F.2d 215

(3d Cir.), cert. denied, 441 U.S. 961 (1979)_. 10

Chemical Mfrs. Ass'n v. Neturel Resources De-

fense Council, Inc., 470 U.S. 116 (1985) 6

“4

i

Chesapeake Bay Foundation, Inc. v. Gwaltney of

Smithfield, Ltd. 791 F.2d 304 (4th Cir. 1986). 3,

City of Highlend Perk v. Trem, 519 F.2d G&l

(7th Cir. 1975), cert. denied, 424 U.S. 927

a ll

FMC Corp. Vv. Treim, 589 F.2d 973 (4th Cir.

== 5

Gienceana V. Johnson, 335 F.2d 266 (7th Cir.

1964), cert. denied, 379 U.S. 1001 (1965). is

Hamber v. Diamond Shamrock Chemical Co. T5464

F.2d 392 (Sth Cir, 1985) ell, 12, 16, 19

James ¥. Luaby,. 499 F.2d 488 (D.C. Cir. 1974).

Land Vv. Dollar, 336 U.S. T31 (1947) |

Lichter ¥. Paine, Webber. Jackson & Curtis, Ine.

570 F. Supp. 533 (N_D. 1. 198%) es

Marathon Ol Co. v. EPA, 564 F.2d 1258 (9th

Ce. 1577) ..........

Mortensen V. First Federal Savings @ Loan Ass'n.

549 F.0d 884 (3d Cir. 1977) .

Natural Resources Defense Council, Ine. ¥ EPA.

510 F.2d 692 (D.C. Cir. 1975)

Natural Resources Defense Council, Ine. v . Train,

8 Env't Rep. Cas. (BNA) 2120 (D.D.C. 1976)

Niven Vv. Hampton, 400 F. Supp. 881 (ELD. Pa.

1975), afd, 535 F.2d 1247 (3d Cir. 1976)

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

807 F.2d 1089 (ist Cir. 1986) 10, 12, 18,

Reesell v. Town of Mamaroneck, 440 F. Supp. 607

(S.D.N.Y. 1977)

St. Paw! Indemnity Co. v. Red Cab Co. 308 US

233 (7908)

Senate Select Comm on Pree. Campaign Activi-

ties v. Niven, 366 F. Supp. 51 (D.D.C. 1973).

rT

222 88 £2 we Be & BS

iii

TABLE OF AUTHORiTIES—Continued

Page

Western Transportation Co. v. Coozens Ware-

house & Distributors, Inc., 695 F.2d 1033 (7th

I eeemaenOnS 23

STATUTES

Clean Air Act, 42 U.S.C. § 7406(a) (1982) ......... 10

Clean Water Act, 33 U.S.C. §§ 1251-1376 (1982)... 2

ee 4

a '2 4

I ieserennnnesenn 4

a 5

EE aiiteleacnadies 12

ee 13, 17

Ee 16, 17

a 12, 13, 16

a 12, 13, 16

EE 4

S| 4

EEA passim

CE ll

$3 U.S.C. § 1865(b) (1) (A) —...0.- ee .. 3

33 U.S.C. § 1266(b) (1) (B) ................................ 17

EE 11

LL 11

eT 11

a 11

LEGISLATIVE HISTORY

Senate Comm. On Public Works, Legislative His-

tory Of The Clean Air Act Amendments Of

1970, (Comm. Print 1974)

Se lait itceninaas 14

Senate Comm. on Public Workes, Legislative His-

tory Of The Federal Water Pollution Control

Act of 1972 (Comm. Print 1972)

i 15,17

Nc ‘ 15

a 13, 14

iv

TABLE OF AUTHORITIES—Continued

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

1987 U.S. Code Cong. & Ad. News (101 Stat.)

REGULATIONS

COG. tee © BEBE GUD cece cencceccesscccsvsecemscssssmssssessnessess

OE EEE

MISCELLANEOUS

EPA Document 440/1-83-007B, Development Doc-

ument for Proposed Effluent Limitations Guide-

lines and Standards for the Inorganie Chemical

Point Source Category (Phase II) (Oct. 1983)

STEEP sccicnzetiiesiineinnsicidscinaceapaiap ieee iaaiaiaeeaiciciitania tila

8 8 A ae

Preamble, Pulp, Paper, and Paperboard Point

Source Category Effluent Limitations Guide-

lines And New Source Performance Standards,

3, 9 FO fk Ee

Iu the Supreme Court of the Muited States

OCTOBER TERM, 1986

No. 86-473

GWALTNEY OF SMITHFIELD, LTD.,

2 Petitioner,

CHESAPEAKE BAY FOUNDATION, INC.,

and

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES,

AMERICAN PETROLEUM INSTITUTE,

CHEMICAL MANUFACTURERS ASSOCIATION,

SYNTHETIC ORGANIC CHEMICAL

MANUFACTURERS ASSOCIATION,

AND AMERICAN PAPER INSTITUTE

IN SUPPORT OF THE PETITIONER

STATEMENT OF INTEREST

With written consent of the parties,’ the Chamber of

Commerce of the United States, American Petroleum

Institute, Chemical Manufacturers Association, Synthetic

1 The consent letters have been filed with the Clerk of this Court.

2

Organic Chemical Manufacturers Association, and Amer-

ican Paper Institute respectfully submit the attached

brief amicus curiae pursuant to Supreme Court Rule

36.2. Amici curiae are five major trade associations

which represent a broad cross-section of American indus-

try regulated under the Clean Water Act (“Act”), 33

U.S.C. §§ 1251-1376 (1982). Amici regularly represent

their members’ views in court on issues of national sig-

nificance.

Amicus Chamber of Commerce of the United States

(“Chamber”) is the largest federation of business orga-

nizations and individuals in the United States. Its mem-

bership exceeds 184,000, including over 180,000 corpora-

tions, partnerships and proprietorships, as well as sev-

eral thousand trade associations and state and local cham-

bers of commerce. The Chamber’s membership reflects

the diversity of American industry and includes com-

panies of all sizes and types.

Amicus American Petroleum Institute (“API”) is a

national trade association with a membership of over

200 corporations and 6,000 individuals who are engaged

in all aspects of the petroleum industry, including ex-

ploration, production, refining and marketing.

Amicus Chemical Manufacturers Association (“CMA”)

is a non-profit trade association whose members produce

more than ninety percent of this country’s basic indus-

tria! chemicals.

Amicus Synthetic Organic Chemical Manufacturers As-

sociation (“SOCMA”) is a non-profit trade association

with more than 140 members, including many small

companies. SOCMA’s members produce a wide variety of

organic chemicals, many of which are used as intermedi-

ates in the production of plastics and fibers, coatings,

dyes, flavorings, pharmaceuticals and other products.

Amicus American Paper Institute (“API”) is a na-

tional trade association of the pulp, paper and paper-

board manufacturing industry. The 175 member com-

panies of API provide about ninety percent of all pulp,

paper and paperboard manufactured in the United States.

The question before the Court in this case is whether

Section 505 of the Clean Water Act, 33 U.S.C. § 1365,

empowers citizens to sue companies that are in compli-

ance with, but which had in the past violated, that Act.

This question of statutory construction goes to the heart

of how Congress intended the Clean Water Act to be

enforced, and raises legal and practical issues of vital

concern to each of the amici and to the regulated com-

munity in general.

The trade association amici are committed to the goals

of the Clean Water Act and compliance with its re-

quirements. They do not believe, however, that Congress

ever intended citizen suits to be coextensive with the

full panoply of enforcement powers which repose in gov-

ernmental authorities. Amici are concerned, therefore,

that the Fourth Circuit’s construction of the statute has

elevated the role of citizen suits well beyond what Con-

gress intended when it enacted Section 505 of the Clean

Water Act.

STATEMENT OF THE CASE

Section 505 allows citizens to commence civil actions

against any person “who is alleged to be in violation of

. . . an effluent standard or limitation under this Act.”

83 U.S.C. §1365/a)(1)(A). In the case below, the

United States Court of Appeals for the Fourth Circuit

held the operative words—“in violation of”-—to include

purely past violations that had ceased prior to commence-

ment of the suit. Chesapeake Bay Foundation, Inc. Vv.

Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th Cir.

1986). In so doing, the Fourth Cireuit rejected the

Fifth Cireuit’s decision in Hamker v. Diamond Sham-

rock Chemical Co., 756 F.2d 392 (5th Cir. 1985), which

construed the plain meaning of the words “in violation”

4

to mean that citizen suits can be initiated only to enforce

the Act against a discharger whose violations are on-

going.

The Fourth Circuit's decision below raises important

national issues concerning the scope of citizen suit en-

forcement under Section 505 of the Clean Water Act.

Resolution of these issues requires an appreciation of

how effluent limitations are established and enforced un-

der the Clean Water Act.

A. Establishment Of NPDES Permit Limitations

Section 301 of the Clean Water Act, 33 U.S.C. § 1311,

prohibits the discharge of pollutants to navigable waters

except in compliance with a permit issued by the En-

vironmental Protection Agency (“EPA”) or an approved

state under Section 402 of the Act, 33 U.S.C. § 1342.

These permits, known as National Pollutant Discharge

Elimination System (“NPDES”) permits, contain spe-

cifie limitations on the mass or concentration of pollut-

ants that may be discharged.

Limits contained in NPDES permits are derived in

two ways. They may be calculated from technology-based

effluent limitations guidelines promulgated by EPA un-

der Section 304 of the Act, 33 U.S.C. § 1314. Or, where

guidelines have not been promulgated, permit limitations

may be based upon the “best professional judgment” of

permit writers as to the technologically achievable level

of water pollution control.”

The promulgation of effluent limitations guidelines has

been far more difficult than anyone, including Congress,

expected. Congress required EPA to issue technology-

based guidelines within one year of the adoption in 1972

of the Federal Water Pollution Control Act Amendments.

233 U.S.C. §1342(a)(1). NPDES permits may also contain

water-quality based limits derived from state water quality stand-

ards. 33 U.S.C. § 1313.

5

33 U.S.C. §1314(b). Since 1972, EPA has devoted sig-

:

it necessary to divide plants into subcategories be-

cause of differences in the wastewater generated by dif-

ferent plants in a particular industry.

Second, when Congress adopted technology-based re-

quirements in 1972, very little was known about the capa-

bility of various treatment technologies to treat the dif-

ferent types of wastewaters generated by industrial

plants. Numerous treatment technologies were only in

the planning or development stages: o*her were still only

theoretical. Thus. the task of establishing precise, nu-

merical effluent limitations that reliably can be achieved

by the installation of wastewater treatment technology

was—and remains—as much an art as a science.

To derive guidelines for a particular industry, EPA

selects a “model” treatment technology, and then applies

a statistical calculation to identify the level of pollution

control achievable 95-99% of the time.‘ The guidelines

do not represent a level of control achievable 100% of

the time, even using the technology on which EPA

relied.

* See Natural Resources Defense Council, In- v. Train, 8 Env't

Rep. Cas. (BNA) 2120 (D.D.C. 1976). See alse Netural Resources

Defense Council, Inc. v. EPA, 510 F.2d 692 (D.C. Cir. 1975).

*See Merathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th

Cir. 1977); FMC Corp. v. Train, 539 F.2d 973, 985 (4th Cir. 1976).

6

Once EPA establishes effluent limi‘ itions guidelines,

_ translating them into enforceable permit limits is also a

difficult task. Again, the complexity and variety of

American industry, and the still developing science of

wastewater treatment mean that the process-is often an

imprecise one.

When guidelines apply, a plant may not fit neatly inte

one subcategory, or even cne category.° Complex manu-

facturing facilities often engage in operations that fall

under more than one set of effluent limitations guide-

lines. For example, a plant may engage in the manu-

facture of both organic and inorganic chemicals, which

are subject to different EPA guidelines, or a plant may

engage in two processes that fall under different sub-

categories within a single guideline.

Where there are no applicable EPA guidelines, or

there are guidelines for only part of a plant’s opera-

tions, permit limitations must be established case-by-

case. In these circumstances, 4 permit writer’s profes-

sionai judgment must be exercised to derive a set of

limitations applicable to the wastestreams. The vast

majority of NPDES permits contain limitations calcu-

lated on this basis. These “best professional judgment”

permit limits are essentially educated guesses—both as

to the levels of pollutant reduction that can be achieved

after new treatment technology is installed and as to

the date by which compliance with the limits can be

achieved.

B. Achievement Of Permit Limitations

It is not surprising that permit limits often cannot be

met or cannot be met within the time frame contem-

5A discharger that is fundamentally different from the other

plants in a category that were used to develop the limitations for

the industry may apply for a “fundamentally different factors”

variance, but they are rarely granted. See Chemical Mirs. Ass'n

v. Natural Resources Defense Council, Inc., 470 U.S. 116 (1985).

7

plated by the permit writer. A plant may install the

technology on which the permit limits were based, but

it still may be unable to meet the limits. In theory, the

plant could seek a modification of its permit. However,

permit-issuing authorities have been unable to keep up

with the formidable task of issuing new and renewed

permits, and there is a tremendous backlog of expired

permits; timely permit modifications are seldom possible.

Plants seek to come into compliance with their permit

limits in a number of ways. They seek to upgrade or

fine tne their wastewater treatment systems, in an ef-

fort that can be time-consuming and costly. Steps may

incluie pilot plant or laboratory studies and may result

in use of different chemicals for treatment, revised tim-

ing of certain treatment steps, process modifications, or

installation of additional treatment technology.

By this trial-and-error process, plants seek to come

into compliance. It may take weeks, months, or several

years before the right combination of steps is identified

and implemented and compliance with permit limitations

is achieved consistently. During this time, dischargers

are often in regular contact with the permit-issuing au-

thorities, i.e., EPA or a state agency, advising them of

actions the plant is taking. If these authorities believe

that action is not being undertaken expeditiously or that

enforcement is otherwise necessary, they may bring ap-

propriate enforcement actions in state or federal court.

If the permitting authority concludes that a company

is taking appropriate steps to achieve compliance under

the circumstances, it may exercise enforcement discretion

not to bring suit.

C. Enforcement Of Permit Limitations

In addition to discharge limitations, NPDES permits

contain conditions that require dischargers to monitor

their effluent and to report the results to EPA or the

state. Dischargers are required to sample for-—ancé to

8

comply with limitations on—pollutants on either a daily,

weekly or monthly basis. These samples are analyzed in

accordance with EPA-approved analytical methods. The

results of a discharger’s analyses are reported to the

permit-issuing authority on a regular basis in Discharge

Monitoring Reports.

The discharger’s self-reporting of permit exceedences

is often sufficient to establish liability in enforcement ac-

tions.* It should be recalled, however, that permit limita-

tions are not designed to be achievable 100% of the time,

even under ideal conditions. As EPA has observed, ‘oc

casional, infrequent instances of noncompliance are sta-

tistically predictable at well-operated and maintained

treatment facilities.”* In recognition of this, EPA and

state enforcement officials may exercise discretion on

whether to bring an enforcement action ( e.g., Where

treatment is exemplary but statistically-expected viola-

tions occur). This necessary discretion is lost when citi-

zen groups institute suits.

SUMMARY OF ARGUMENT

Section 505 of the Clean Water Act, 33 U.S.C. § 1365,

should be construed in a manner that recognizes Congress’

overriding concerns regarding the role of citizen partici-

pation in enforcement as well as the technical uncer-

tainty inherent in setting permit limitations. Citizen

*EPA’s regulations identify two instances when exceedence of

a permit limitation would not constitute a violation: instances of

operational “upset,” and “bypass” of the treatment system in certain

circumstances. 40 C.F.R. §§ 122.41(m), (m). Other defenses might

also be available in a particular case.

TEPA Document 440/1-83-007B, Development Document for Pro-

posed Effluent Limitations Guidelines and Standards for the Inor-

ganic Chemical Point Source Category (Phase II) (Oct. 1983). at

113. As EPA further explained: “Such high variations may be due

to a variety of factors, such as short-term maladjustments in treat-

ment facilities, variations in flow or pollutant load, or changes in

the influent stream... .” Jd.

\

9

participation is not an end unto itself; rather, in appro-

priate circumstances, it is a useful supplemental means

to the end of preserving and enhancing the integrity of

the nation’s waters.

The citizen suit provision is designed to provide an

additional means of compelling compliance with the re-

quirements of the Clean Water Act. It provides a cause

of action for citizen plaintiffs, and jurisdiction in the

court, to abate ongoing violations by means of injunctive

relief. The citizen suit provision is analogous to EPA’s

authority to issue compliance orders or to seek injunc-

tive relief against a discharger who is “in violation.”

The citizen suit provision is not intended as a mecha-

nism for penalizing purely past violations. The imposition

of penalties in a citizen suit is ancillary, and penalties

are available in conjunction with injunctive relief only

as “appropriate.”

The government’s ability to seek penalties is not so

constrained, but the government exercises prosecutorial

discretion, taking into account good faith remedial efforts

and the fact that some exceedences are expected given

the way permit limitations are established. Permit lim-

itations are not established at levels achievable 100% of

the time, and control technology often does not perform

at 100% efficiency. Implementation of the Clean Water

Act requires a certain amount of “give and take” between

the regulators and the regulated community and may

call for exercise of prosecutorial discretion by permit au-

thorities where, notwithstanding installation of the requi-

site technology and model operation of the system, occa-

sional exceedences of permit limitations inevitably occur.

Allowing citizens to seek penalties for purely past viola-

tions which have since been remedied would not serve

any abatement purpose and would discourage rather than

encourage achievement of the goals of the Clean Water

Act.

For just such reasons, Congress carefully circumscribed

the availability of citizen suits. A citizen suit will lie

10

only where the discharger is “in violation” and then only

“to enforce” the limitations of the permit. As the First

Circuit concluded, “the words ‘is . . . in violation’ should

be sufficiently liberally construed to comport with the

injunctive purpose of the Act—conduct indicative of con-

tinuing or renewed violation justifying an injunction, as

distinguished from matters over and apparently done

with, that would not warrant one.” Pawtuxet Cove Ma-

rina, Ine. Vv. Ciba-Geigy Corp., 807 F.2d 1089, 1093 (ist

Cir. 1986). Such a “construction corresponds both with

the statutory language and with the statutory purpose.”

Id. at 1094. It also harmonizes the Congressional pur-

pose of authorizing citizen suits as a supplemental means

of enforcing compliance with the practical realities of

pollution control and the permitting system.

ARGUMENT

I. CITIZEN SUITS UNDER THE CLEAN WATER ACT

ARE A SUPPLEMENTAL METHOD FOR ABATING

ONGOING VIOLATIONS.

Congress placed primary responsibility for enforcement

of the Clean Water Act with the Environmental Protec-

tion Agency and those states implementing the Act un-

der authorized NPDES permit programs. Citizen suits

serve purposes that are subordinate to primary enforce-———

ment by governmental agencies. They are meant to

stimulate governmental activity and to provide an alter-

native, supplemental mechanism for forcing compliance

if those government agencies do not act. See Baughman

v. Bradford Coal Co., 592 F.2d 215, 218 (3d Cir.),

cert. denied, 441 U.S. 961 (1979). As stated by the

Court of Appeals for the Seventh Circuit in construing

the citizen suit provision of the Clean Air Act: *

* The citizen suit provision of the Clean Water Act is based upon

the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7406(a)

(1982). See infra at 14-15.

11

Congress intended to provide for citizens’ suits in a

manner that would be least likely to clog already

burdened federal courts and most likely to trigger

governmental action which would alleviate any need

for judicial relief.

City of Highland Park v. Train, 519 F.2d 681, 690-91

(7th Cir. 1975), cert. denied, 424 U.S. 927 (1976). There-

fore, Section 505 cireumscribes the availability ot citizen

suits so that such suits serve to achieve abatement of

illegal discharges, either indirectly by spurring compli-

ance or federal or state enforcement action, or directly

by the citizen suit.

A. The Language Of Section 505(a) Cireumscribes The

Availability Of Citizen Suits.

The citizen suit provision of the Clean Water Act sets

forth with particularity the circumstances in which an

action may be maintained by a citizen against a dis-

charger. Section 508(a) of the Act permits any citizen

to 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) (em-

phasis added). Section 505(f) defines “effluent standard

or limitation” to mean, inter alia, “an effluent limitation

or other limitation under section 301 or 302 of this Act”

or an NPDES permit “which is in effect.” 33 U.S.C.

§§ 1365(f) (2), (6) (emphasis added).

The requirements of Section 505(a) and (f)—that a

citizen suit plaintiff allege the discharger to be “in vio-

lation” of a permit limitation “which is in effect”—define

the limited function of citizen suits to abaie ongoing pol-

lution.” As the First Circuit observed in Pawtuxent Cove,

the statute speaks not in terms of taint, but in terms of

9 See also Section 505(h) (state may sue discharger in another

state using the citizen suit provision if violation “is occurring” in

another state and “is causing” effects in first state). 33 U.S.C.

§ 1365 (h).

12

activity. “The clear import of section 505(a) is that

citizens are empowered to seek injunctive relief against

a polluter that ‘is in violation’ of the Act, and that in

connection with such an action the district court is

authorized to award ‘any appropriate’ civil penalties.”

807 F.2d at 1092." As explained by the Fifth Circuit

in Hamker, 756 F.2d at 396:

{T jhe ordinary meaning of the words of the [Clean

Water Act], the statute’s structure and its prior

Supreme Court interpretation indicate that section

[505] does not authorize citizen suits seeking either

injunctive relief or the imposition of civil penalties

where the defendant is not alleged to be in violation

of an effluent standard, limitation or order. The sec-

tion “authorizes only prospective relief” even though

“civil penalties . . . may be ordered by the court.”

(citation omitted).

B. The Authority Conferred On Citizens Under Section

505 Is Not Coextensive With The Authority Of The

Government Under Section 309.

The government is empowered by various sections of

Section 309 of the Act, 33 U.S.C. § 1319, to enforce the

Act in several ways: y issuing compliance orders, seek-

ing injunctive relief, or seeking civil or criminal penal-

ties.’ Section 505 only partially parallels the govern-

ment’s authority.

Under Sections 309(c) and (d), the federal govern-

ment may seek to recover penalties for violations at any

1° The Fourth Circuit’s contrary conclusion—that the statute is

sufficiently ambiguous that it must be read to mean a citizen action

will lie to impose penalties against anyone who has ever violated

the Act—discounts the distinction, as discussed below, between the

language used in Section 505 and that used in Sections 309(c)

and (d).

11 The Water Quality Act of 1987, Pub. L. No. 100-4, 1987 U.S.

Code Cong. & Ad. News (101 Stat.) 7, adds to Section 309 a

provision for administrative penalty assessments.

13

time. These sections impose criminal and civil penalties

upon any person who “violates” permit limitations, with-

out reference to whether or not the violations are on-

going.”

A separate provision, Section 309(a), authorizes the

government to issue compliance orders or to seek injunc-

tive relief against dischargers who are “in violation” of

effluent limitations or permits. This authorizes the gov-

ernment to act directly to abate ongoing violations, and

differs on its face from Sections 309(c) and (d) which

authorize penalties regardless of whether they are for

past or present violations.

It is the Section 309(a) abatement provision to which

the citizen suit provision, Section 505, is a counterpart.

Section 505, like Section 309(a), is not a penalty provi-

sion aimed at general deterrence; rather, it provides a

mechanism for compelling compliance with permit limi-

tations by a discharger who is “in violation.”** The

citizen suit provision does not parallel the government’s

Section 309(c) and (d) authority to obtain penalties

from a discharger who “violates” a permit at any time.

Rather, Section 505 provides for penalties only as an-

cillary relief in a citizen suit to abate ongoing violations,

and even then, only where “appropriate.”

The Fourth Circuit cited the similarity in language

between Section 505 and Section 309 without analyzing

the significant differences between these provisions. It

12 The penalties are severe—up to $25,000 per day of each viola-

tion. 33 U.S.C. §§ 1319(c), (d), as amended by the Water Quality

Act of 1987.

13 The Senate Report accompanying S. 2770 made clear that the

standard for federal enforcement under Section 309(a) and citizen

suits under Section 505(a) “are the same,” both being actions for

“abatement.” .S. Rep. No. 414, 92d Cong., Ist Sess. 81 (1971)

(“S. Rep.”), reprinted in Senate Comm. On Environment And Pub-

lic Works, 2 Legislative History Of The Federal Water Pollution

Control Act Of 1972 (Comm. Print 1973) (“Leg. Hist.”), at 1499.

14

thus incorrectly held that citizen and EPA enforcement

powers are “co-extensive.” Gwaltney, 791 F.2d at 310.

In fact, the right of action conferred on citizens by Sec-

tion 505 is only a secondary means for achieving com-

pliance with the Clean Water Act. Actions under the

citizen suit provision are limited by the terms of Section

505 to those actions that would secure the abatement of

pollution."*

C. Penalties In Citizen Suits Are Ancillary To The

Purpose Of Achieving Compliance.

The citizen suit provision of the Clean Water Act was

modeled on the citizen suit section of the Clean Air Act,

42 U.S.C. § 7604, which focuses on “citizen suits against

polluters to abate violations” of the Act.’° The citizen

suit provision of the Clean Air Act provides unly for

injunctive relief.

In enacting the Clean Water Act, Congress added to

Section 505(a) the provision for the imposition of civil

penalties in a citizen suit."’ By adding this sanction, how-

14 Indeed, if a citizen suit results in abatement of a violation, the

citizen plaintiffs may be entitled to costs and avtorneys’ fees even if

a verdict is not reached in the suit. In discussing the authority of

a court to award costs “whenever appropriate,” the Senate Report

on S. 2770 states that:

This should extend to plaintiffs in actions which result in

successful abatement but do not reach a verdict. For instance,

if as a result of a citizen proceeding and before a verdict is

issued, a defendant abated a violation, the court may award

litigation expenses borne by the plaintiffs in prosecuting such

actions.

S. Rep. at 81; 2 Leg. Hist. at 1499.

15 Summary of the Provisions of Conference Agreement on the

Clean Air Act, reprinted in Senate Comm. On Public Works, 1

Legislative History Of The Clean Air Act Amendments Of 1970,

93d Cong., 2d Sess. (Comm. Print 1974), at 136 (emphasis added).

16 The Senate Report explained:

As in [the Clean Air Act] the provision in this bill is carefully

restricted to actions where violations of standards aad regula-

15

ever, Congress did not alter the thrust of the section,

which is to abate ongoing pollution. The First Circuit

notes:

Alertness of concerned citizens . . . was of moment,

but of secondary importance; even 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 Reports on the

Clean Water Act characterize the addition of civil

penalties as simply a modification of the citizen ac-

tion for injunction authorized under the Clean Air

Act.

Pawtuxet Cove, 807 F.2d at 1092-93.

Determination of whether injunctive relief is war-

ranted is left to the court, applying the traditional, well-

defined standards which govern the availability of in-

junctive relief. The imposition of penalties in a citizen

suit is permitted only in conjunction with injunctive re-

lief, and then only where “appropriate.”

“Appropriate,” given the limitations on citizen suits

discussed above, must mean that civil penalties are per-

missible under Section 505 only when they would serve

to abate or prevent ongoing violations. Where there is

no likelihood of future violations by a particular dis-

charger, the imposition of penalties for past violations

would not be “appropriate” and, therefore, is precluded

by the plain language »f Section 505."° The word “ap-

tions or a failure on the part of officials to act are alleged. One

modification would allow the Courts to impose civil penalties

provided as a result of actions brought by citizens. ,

S. Rep. at 792; 2 Leg. Hist. at 1497. See also H. Rep. No. 911, 92d

Cong., 2d Sess. 133 (1972) (“H.R. Rep.”); 1 Leg. Hist. at 820.

17 The dictum in Pawturet Cove that “[a] plaintiff who makes

allegations warranting injunctive relief in good faith, judged

objectively, may recover a penalty judgment for past violations even

if the injunction proves unobtainable,” 807 F.2d at 1094, is incorrect.

18 Even in the case where injunctive relief is granted to abate

ongoing violations, the court has discretion as to whether to assess

16

propriate” must be viewed as a constraint on the im-

position of civil penalties in citizen suits, a constraint

which does not appear in the provision authorizing civil

penalties in suits brought by EPA under section 309.”

That citizen suits are authorized only to compel com-

pliance is further indicated by the requirement of ad-

vance notice of a citizen suit to both the discharger and

to the federal and state enforcement agencies.” 33

U.S.C. § 1865 (b) (1) (A).

The alleged violator who receives notice is thus pro-

vided with an opportunity to bring its discharges into

compliance. Should it do so, the purpose of the suit has

been achieved, and the need for any litigation is ob-

viated. Similarly, should the govern »ental entities re-

ceiving notice be prompted to initiate action to secure

compliance,” the citizen suit is then precluded. The

ancillary penalties and civil penalties may not serve any useful

compliance purpose in a particular case.

19 As noted above, Sections 309(c) and (d) impose criminal and

civil penalties upon any person who “violates” the limitations of the

Act, without reference to whether the discharger is currently “in

violation” or whether penalties are “appropriate.” The term “appro-

priate” in Section 505 cannot refer to the court’s discretion to fix

the amount of any penalty, because such discretion is inherent under

either Section 309 or Section 505. As use of the term in Section 505

surely is not mere surplusage, it must refer to a constraint ap-

plicaple to citizen suits but not government penalty actions.

20 The court in Hamker, 756 F.2d at 396, explained:

[T]he Act t* structured to concentrate enforcement authority

in the Administrator and the states, with supplementary power

given to citizens under section [505(a)]. This supplementary

power may be exercised only where neither the authorities nor

the polluter acts to terminate the ongoing violation.

21 The notice provision requires that the plaintiff give notice at

least sixty days prior to the commencement of a civil action. The

notice enhances the ability of the Administrator to “find[{] that

any person is in violation of any condition or limitation”, a prerequi-

17

statute expressly precludes citizen action where the gov-

ernment is diligently prosecuting an action against a

discharger “to require compliance with” the applicable

requirement. 33 U.S.C. § 1365(b) (1) (B). As the House

Report stated, no suit may be brought if “an abatement

action is pending and is being diligently pursued in a

United States or State Court.” H.R. Rep. at 133; 1 Leg.

Hist. at 820.

Each of these provisions evidences Congress’ intent that

a citizen suit be brought to secure present or prospective

compliance with the requirements of the Act. This may

be accomplished either through inducing voluntary com-

pliance following receipt of a notice letter, spurring state

or federa] enforcement or, if necessary, by commencement

of a separate citizen suit.

II. RECURRING VIOLATIONS ARE NECESSARY TO

SUPPORT A CAUSE OF ACTION UNDER SEC-

TION 505.

A. The Appropriate Test Is One That Looks To The

Likelihood Of Continuing Violations.

In determining whether a citizen suit will lie under

Section 505, the district court must look to whether the

action is one for abatement, not just penalties. Under

the statutory scheme and language discussed above, a

citizen is not empowered to bring an action solely for the

imposition of penalties relating to purely past violations;

such an action is the prerogative of federal and state en-

forcement authorities in the exercise of their prosecu-

torial discretion. In citizen suits, the action must be

brought against a discharger who is “in violation,” “to

enforce” the terms of the discharger’s permit; penalties

may be awarded as relief ancillary to an injunction, but

only where appropriate, pursuant to Section 505(a).

site to the issuance of an administrative compliance order or com-

mencement of a civil action by the government to restrain that

violation. 33 U.S.C. §§ i319(a), (b).

18

As the action is one for abatement of pollution, the

court must determine whether a defendant discharger is

“in violation” by looking at whether there are ongoing

violations susceptible of abatement. Amici submit that

the First Circuit’s construction in Pawtuxet Cove is par-

ticularly apt:

We therefore think that the words ‘is . . . in viola-

tion’ should be sufficiently liberally construed to com-

port with the injunctive purpose of the Act—conduct

indicative of continuing or renewed violation justify-

ing an injunction, as distinguished from matters

over and apparently done with, that would not war-

rant one. We find this possible in the fact that the

statutory phrase is not the three words we have

heretofore considered, but is ‘is alleged to be in viola-

tion.’ It is far less of a stretch to interpret these

words as applicable to a present continuing intent

than to take the Gwaltney court’s encompassing a

single past act . . . If a defendant’s history of past

violations is such that it is reasonable to believe

that misconduct will continue, not only is it reason-

able to allege a continuing violation, but this is pre-

cisely the showing that would induce a court to issue

an injunction.

807 F.2d at 1093-94 (citation omitted).

Courts are well accustomed to engaging in this sort of

“injunction analysis.” The First Circuit had no difficulty

articulating factors that would enter into the analysis:

In reviewing action under this standard, the district

court should consider, among other things, the iso-

lated or recurrent nature of the infraction, the degree

of scienter on the part of the defendant, and the

sincerity of its assurances against future violations.

804 F.2d at 1094 (citation omitted).

The Fifth Circuit employed a similar analysis in Ham-

ker when it upheld dismissal of a citizen suit where there

were no allegations of ongoing violations or facts that

19

would warrant prospective relief. 756 F.2d at 396. The

Fifth Circuit’s analysis is consistent with the approach

adopted by the First Circuit. In each instance, the court

looked to whether the citizen action was one for abate-

ment of pollution; in each instance, the court found it

was not.

Hamker involved a one-time rupture of a pipeline.

Pawtuxet Cove involved a defendant who had ceased

discharging. A more difficult case is posed by a dis-

charger with intermittent violations, but the analysis is

still the same. By focusing on whether the violations

are likely to recur and thus susceptible of prospective

relief, the “construction corresponds both with the statu-

tory language and with the statutory purpose.” Paw-

tuxet Cove, 807 F.2d at 1094. As Judge Williams con-

curring in Hamker noted, the statutory requirement that

the discharge be “in violation” should be read “to cover the

chronic episodic violator or the violator who intentionally

‘turns off the spigot’ just before a citizen brings suit.”

756 F.2d at 399.

B. Alternative Formulations Do Not Effectuate The

Statutory Purpose.

Other tests for what the statute means by “in viola-

tion” have been proffered by the parties and by the court

in Gwaltney, but these tests do not correlate well with

accomplishing the Congressional goal ©* abating viola-

tions and do not accommodate the uncertain and some-

times “trial and error” nature of water pollution regula-

tion and control.

First, a test that focuses solely on whether the dis-

charger is in violation on the precise day the citizen suit

is filed may not achieve fully the statutory purpose of

abating ongoing violations. For example, a plant might

experience an excursion on the day of the complaint not

due to any inadequacy of treatment, but solely due to

the statistical variability discussed supra at 5, 8. Random

20

excursions can be expected, particularly where the permit

contains limitations on a great many substances. Such

an isolated “violation” would not warrant injurctive re-

lief. Conversely, a plant might have woefully inadequate

treatment capability, but might be in compliance on the

day suit was filed. Both circumstances suggest that a

test premised upon the serendipity of filing is inadequate.

In short, the statute’s requirement for ongoing violations

must be given a practical construction to carry out the

intent of the citizen suit provision.

Second, application of Section 505 to reach dischargers

who have ever been in violation on any day, as argued

by citizen plaintiffs, also fails to serve the statutory pur-

pose of abating violations. The citizen suit provision is a

supplemental mechanism for achieving compliance; it is

not intended to supplant the government’s authority to

seek penalties for past violations.

Occasional, random excursions in excess of permit limi-

tations are predictable and by definition unavoidable.

See supra at 5, 8. It is ongoing violations, not random

excursions, that are addressed by the citizen suit provi-

sion. While penalties in governmerta] enforcement ac-

tions theoretically are available for every instance of vio-

lation, including such vandom excursions, in practice reg-

ulatory authorities temper their enforcement activities in

light of the vagaries of technology and the good faith

remedial efforts of permittees.**

22 In fact, EPA relies on the availability of enforcement discre-

tion when it sets effluent limitations guidelines. For instance, in

the preamble to final discharge rules for the pulp and paper indus-

try, EPA acknowledged that certain limits would result in “three

to four violations of daily maximum limitations every year...”

simply because of the statistical method employed by the Agency

to select these limits. Preamble, Pulp, Paper, and Paperboard Point

Source Category Effluent Limitations Guidelines And New Source

Performance Standards, 45 Fed. Reg. 52,017 (1982). But EPA

concluded that because it could exercise enforcement discretion, the

rules would not “adversely affect industry or subject industry to

\

21

If citizen suits were allowed free of the statutory con-

straints discussed above, they would undercut reasonable

progress toward the clean up goals of the Clean Water

Act. Dischargers subject to penalties in citizen suits for

any violation will be disinclined to accept stringent per-

mit limitations without lengthy adjudication. Achieve-

ment of stringent effluent limits likely depends upon per-

fect operation of treatment technology at the limits of

its capability. Such performance is never achieved in

practice. Accordingly, permit applicants will seek less

stringent permit conditions through administrative and

judicial means, thus lengthening the permitting process,

decreasing the likelihood that stringent operating condi-

tions will finally be imposed, and directing resources

away from achieving the goals of the Clean Water Act.

In addition, subjecting dischargers to citizen suits for

absolutely any past violation, since remedied, is also

likely to discourage the installation of new treatment

technology, because such technology may result in occa-

sional exceedence of permit conditions until the “bugs”

ean be worked out. Instead, dischargers will act con-

servatively and select conventional treatment technology

which—although it may work more consistently than in-

novative designs—will not advance the state-of-the-art

of water pollution control.

C. The Allegation Of Ongoing Violations In A Citizen

Suit Must Be Factually Supported To Establish

Jurisdiction And The Plaintiff's Right To Relief.

In the court below, the United States argued (as

amicus curiae) that a good faith allegation of ongoing

violations is sufficient to confer jurisdiction, and subse-

the real possibility of unnecessary enforcement action.” Jd. The

Agency stated: “Although the Clean Water Act is a strict liability

statute, the initiation of enforcement proceedings by EPA is discre-

tionary. We have exercised and intend to exercise that discretion

in a manner that recognizes and promotes good faith compliance

efforts.” Jd.

22

quent proof of compliance should not divest the court of

jurisdiction or result in dismissal.** The government’s

position is incorrect as a matter of law and would render

the statutory provisions a nullity.

The requirement that a citizen suit be addressed to

abatement of ongoing violations is both jurisdictional and

substantive. When a discharger is in violation, i.e., the

facts show that violations are likely to recur unless en-

joined, then Section 505 confers both jurisdiction on the

court and a cause of action on the citizen to enforce the

permit. Where such a case cannot be made, then the

claim is subject to dismissal on jurisdictional grounds or

on the merits.

Section 505 refers to the discharger being “alleged to

be in violation.” However, the word “alleged” should not

be read to mean that jurisdiction or a claim is created

by an unsupported allegation. Rather, allegations that

violations are ongoing or likely to recur are subject to

review for both facial and factual adequacy.

Subject matter jurisdiction may be challenged at any

time, at the court’s instance or pursuant to a Rule

i2‘b)(1) motion. Such a motion may attack the suffi-

ciency of the complaint on its face, e.g., when it does not

even allege ongoing violations or the likelihood of recur-

rence. A motion under Fed. R. Civ. P. 12(b) (1) may

also challenge the factual basis of subject matter jurisdic-

tion, quite apart from the pleadings.** See generally

*3 Brief for the United States as Amicus Curiae Supporting

Appellees at 21. The government argued that the “good faith” was

demonstrated by the factual record, although it did not acknowledge

that the sufficiency of the allegations is subject to factual challenge.

24In the court below, the United States contended that the rea-

sonableness of the allegations was “subject to a number of safe-

guards (such as Rule 11 and attorneys’ fees) to assure that they

are not frivolous.” Brief for the United States as Amicus Curiae,

supra at 22. As discussed above, however, such “safeguards” have

never supplanted a court’s inquiry into the factual premises sup-

porting subject matter jurisdiction. ~~~

23

Lend v. Dollar, 330 U.S. 731, 735 n.4 (1947). The Court

there noted that while a motion for failure to state a

cause of action assumes the allegations of the complaint

to be true, when an issue of jurisdiction is raised, “the

court may inquire, by affidavits or otherwise, into facts

as they exist.” As no procedure is specified, the mode of

determining jurisdiction is left to the trial court. The

Third Circuit has elaborated:

Because at issue in a factual 12(b) (1) motion is the

trial court’s jurisdiction—its very power to her the

case—there is substantial authority that the trial

court is free to weigh the evidence and satisfy itself as

to the existence of its power to hear the case. In

short, no presumptive truthfulness attaches to the

plaintiff’s allegations, and the existence of disputed

material facts will not preclude the trial court from

evaluating for itself the merits of jurisdictional

claims. Moreover, the plaintiff will have the burden

of proof that jurisdiction does in fact exist.

Mortensen Vv. First Federal Savings & Loan Ass’n, 549

F.2d 884, 891 (3d Cir. 1977) (footnote omitted). See

also Western Transportation Co. vy. Coozens Warehouse

& Distributors, Inc., 695 F.2d 1033, 1038 (7th Cir.

1982) :

We note that the district court may review any evi-

dence submitted on the issue to determine if subject

matter jurisdiction in fact exists. Moreover, the

party alleging jurisdiction must support its allega-

tion with competent proof of jurisdictional facts .. .

The district court is not precluded from considering

conflicting evidence which weighs on the jurisdic-

tional determination.

The First Circuit in Pawtuxet Cove held that a citizen

suit “may go forward if the citizen-plaintiff fairly alleges

a continuing likelihood that the defendant, if not enjoined,

will again proceed to violate the Act.” 807 F.2d at 1094.

24

The Court of Appeals likened this requirement to the

amount in controversy for jurisdictional purposes, 2.¢.,

a “reasonably held allegation” is sufficient to establish

jurisdiction, and jurisdiction is not lost if subsequent in-

quiry reveals the allegation to have been incorrect. 807

F.2d at 1093.

The analogy to amount in controversy is a good one

up to a point. Section 505 refers not to the actual exist-

ence of ongoing violations but to the allegation of them

as being sufficient to confer jurisdiction. However, the

jurisdiction allegations are not mere pleading require-

ments but must withstand facial and factual challenge.

Even with respect to amount in controversy, the reason-

ableness of the allegation is subject to factual as well as

facial challenge.”

Moreover, the analogy to amount in controversy is not

complete because the requirement of ongoing violations

is not only jurisdictional, it is also substantive. As dis-

cussed above, the requirement is an element of the plain-

*5 As explained by this Court in St. Paul Indemnity Co. v. Red

Cab Co., 303 U.S. 283, 289 (1938) :

[I}f, from the face of the pleadings, it is apparent, to a legal

certainty, that the plaintiff cannot recover the amount claimed,

or if, from the proofs, the court is satisfied to a like certainty

that the plaintiff never was entitled to recover that amount,

and that his claim was therefore colorable for the purpose of

conferring jurisdiction, the suit will be dismissed.

(emphasis added). See also James v. Lusby, 499 F.2d 488, 492-93

(D.C. Cir. 1974) ; Giancana v. Johnson, 335 F.2d 366, 368 (7th Cir.

1964), cert. denied, 379 U.S. 1001 (1965) ; Lichter v. Paine, Webber,

Jackson & Curtis, Inc., 570 F. Supp. 533, 535-86 (N.D. Il. 1983);

Russell v. Town of Mamaroneck, 440 F. Supp. 607, 610-11 (S.D.N.Y.

1977); Niron v. Hampton, 400 F. Supp. 881, 886-87 (E.D. Pa.

1975), aff'd, 535 F.2d 1247 (3d Cir. 1976); Senate Select Comm.

on Pres. Campaign Activities vy. Nixon, 366 F. Supp. 51, 59-60

(D.D.C. 1973).

25

tiff’s cause of action. If the allegations or undisputed

facts (or facts established at trial) demonstrate that

there was no ongoing violation or reasonable likelihood

of recurring violations at the time the suit was filed,

then the case should be dismissed on the merits. Dis-

missal would be appropriate in these circumstances be-

cause such a suit is not one for the abatement of pollu-

tion, and thus there is no valid cause of action.”

As the statutory language and purpose indicate, citi-

zen plaintiffs have a cause of action only to compel com-

pliance and abate illegal discharges. If there is no rea-

sonable possibility of ongoing violations to be abated,

then there is no basis for injunctive relief or for the

imposition of penalties as an ancillary remedy to affirm-

ative relief to ensure future compliance.

26 The issues of jurisdiction and the plaintiff's cause of action

should be distinguished from the granting of relief. In addressing

either jurisdiction or whether the plaintiff has stated a claim, the

court would look to the likelihood of recurring violations as of the

time of the complaint. The court could consider post-filing events

to the extent they bear on the existence of a continuing or recurring

violation when the suit was commenced. The availability of injunc-

tive relief, however, along with ancillary or “appropriate” civil

penalties, would always be based upon al] facts available to a court

at the time an injunction is entered.

CONCLUSION

For the reasons stated above, amici respectfully urge

this Court to reverse the decision below, and to hold that

the Clean Water Act authorizes citizen suits only to abate

ongoing violations.

Rosin S. CONRAD *

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for

Chamber of Commerce

of the United States

JAMES K. JACKSON

AMERICAN PETROLEUM

INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005

(202) 682-8000

Counsel for

American Petroleum Institute

RICHARD WASSERSTROM

AMERICAN PAPER INSTITUTE

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 463-2584

Counsel for

American Paper Institute

Respectfully submitted,

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Counsel for Chemical

Manufacturers Association

KATHERINE L. RHYNE

CLEARY, GOTTLIEB, STEEN

& HAMILTON

1752 N Street, N.W.

Washington, D.C. 20036

(202) 728-2700

Counsel for

Synthetic Organic Chemical

Manufacturers Association

* Counsel of Record

9

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