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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

GWALTNEY OF SMITHFIELD, LTD.,

9 Petitioner,

CHESAPEAKE BAY FOUNDATION, INC.,

and

NATURAL RESOURCES DEFENSE COUNCIL,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICI CURIAE OF CONSOLIDATED RAIL

CORPORATION, CRUCIBLE MATERIALS

CORPORATION, FERRO CORPORATION, JERSEY

CENTRAL POWER & LIGHT COMPANY, MCDERMOTT

INCORPORATED, MURPHY OIL USA, INC.

PENNSYLVANIA ELECTRIC COMPANY, POWELL

DUFFRYN TERMINALS, INC. SHELL OIL COMPANY,

AND UNIVERSAL TOOL & STAMPING CO. INC,

IN SUPPORT OF PETITIONER

Scott M. DuBorr *

McNEILL WATKINS II

JOHN P. Proctor

BisHoP, LIBERMAN, COOK,

PURCELL & REYNOLDS

1200 Seventeenth St., N. W.

Washington, D.C. 20036

Phone: (202) 857-9800

* Counsel of Record Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover )

———— ER PS ES AI

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

Of Counsel:

JOHN R. JENCHURA

Consolidated Rail Corporation

1138 Six Penn Center Plaza

Philadelphia, PA 19103

Counsel for Consolidated Rail

Corporation

PHILLIP CONTRERAS

Ferre Corporation

One Erieview Plaza

Cleveland, Ohio 44114

Counsel for Ferre Corporation

RICHARD S. COHEN

Jersey Central Power & Light

Company

Box 1279R

Morristown, New Jersey 07960

Counsel for Jersey Central Power

& Light Company

JACK M. ARNOLD

McDermott Incorporated

1010 Common St., Suite 2745

New Orleans, LA 70112

Counsel for McDermott

Incorporated

JAMEs E. BAINE

Murphy Oil USA, Inc.

Murphy Building

200 Peach Street

El Dorado, Arkansas 71730

Counsel for Murphy Oil USA, Ine.

TIMOTHY N. ATHERTON

Pennsylvania Electric

Company

1001 Broad Street

Johnstown, PA 15907

Counsel for Pennsylvania

Electric Company

NATHAN M. EDELSTEIN

EDELSTEIN & RERNSTEIN

3131 Princeton Pike

Lawrenceville, NJ 08648

Counsel for Powell Duffryn

Terminals, Inc.

Jost A. BERLANGA

Shell Oil Company

P.O. Box 2463

Houston, Texas 77001

Counsel for Shell Oil Company

GRANT VAN HORNE

112 South Cedar Street

Auburn, Indiana 46706

Counsel for Universal Tool &

Stamping Co., Ine.

TABLE OF CONTENTS

Page

Statement of Interest of Ami 2

r... 3

Argument 4

A. Section 505 Does Not Authorize Citizen Suits

To Impose Penalties For Past, Nonrecurring

r ũ òůÜeůG ! ⸗ eunsuseesensnmcannece 4

B. Jurisdiction Under Section 505 Requires A

Showing That Violations Are Ongoing, And

Jurisdiction Is Not Established Merely On The

Basis Of An Allegation That Continuing Viola-

tions Are Likely 2 11

D ceseameenensceuncoose 14

TABLE OF AUTHORITIES

Cases

Chrysler Corp. v. Brown, 441 U.S. 281 (1980) x

City of Evansville v. Kentucky Liquid Recycling,

Inc., 604 F.2d 1008 (7th Cir. 197999999 9

Consumer Product Safety Comm’n v. GTE Syl-

vania, Inc., 447 U.S. 102 (1980) s

Deutsch v. Hewes Street Realty Corp., 359 F.2d

r . 12

Environmental Protection Agency v. California

ex rel. State Water Resources Control Board,

r . — 2

Friends of the Earth v. Consolidated Rail Corp.,

768 F.2d 57 (2d Cir. 1985) 13

Hamker v. Diamond Shamrock Chemical Co., 756

F.2d 392 (5th Cir. 1989) 1 9, 11, 12

International Paper Co. v. Ouellette, 107 S. Ct. 805

, . 5

Marathon Oil Co. v. Environmental Protection

Agency, 564 F.2d 1253 (9th Cir. 197777 13

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass’n, 453 U.S. 1 (1981)

ii

TABLE OF AUTHORITIES—Continued

Page

O’Shea v. Littleton, 414 U.S. 488 (1977: 12

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

807 F.2d 1089 (Ist Cir. 198) 5, 9, 11, 12, 13

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

Cas. (BNA) 1685 (W. D. La. 19883) 13

Statutes

1 — 2, 12

r AS. 4,8, 9, 10, 13

r 2

455 — T —— passim

r A teens 5, 6, 7, 12

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

| RRR r ey Sa AT 13

Legislative Material

H. R. Rep. No. 911, 92d Cong., 2d Sess. (1972) 6

H.R. Rep. No. 1783, 91st Cong., 2d Sess. (1970) 7

S. Rep. No. 414, 92d Cong., Ist Sess. (19717 6, 7

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) 6

A Legislative History of the Water Pollution Con-

trol Act Amendments of 1972, Senate Comm.

on Public Works, 93d Cong., Ist Sess. (1973) 6

A Legislative History of the Clean Air Act

Amendments of 1970, Senate Comm. on Public

Works, 93d Cong., 2d Sess. (197) 6, 7

Water Pollution Control Legislation: Hearings

Before the Subcomm. on Air and Water Pollu-

tion of the Senate Comm. on Public Works,

92d Cong., lst Sess. (1971) .................................. 6,7

116 Cong. Rec. 32927 (1970) 7

Other Authority

/ rere Sr RW AG hone a ee 12

2A C. Sands, Sutherland on Statutory Construc-

tion § 53.01 (4th ed. 1973) in x

IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1986

No. 86-473

GWALTNEY OF SMITHFIELD, LTD.,

Petitioner,

v.

CHESAPEAKE BAY FOUNDATION, INC.,

and

NATURAL RESOURCES DEFENSE COUNCIL,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICI CURIAE OF CONSOLIDATED RAIL

CORPORATION, CRUCIBLE MATERIALS

CORPORATION, FERRO CORPORATION, JERSEY

CENTRAL POWER & LIGHT COMPANY, MCDERMOTT

INCORPORATED, MURPHY OIL USA, INC.

PENNSYLVANIA ELECTRIC COMPANY, POWELL

DUFFRYN TERMINALS, INC. SHELL OIL COMPANY,

AND UNIVERSAL TOOL & STAMPING CO., INC.

IN SUPPORT OF PETITIONER

This brief amici curiae is submitted in support of peti-

tioner Gwaltney of Smithfield, Ltd. Amici believe that

the decision below of the court of appeals, Chesapeake

Bay Foundation v. Gwaltney of Smithfield, Ltd., 791

F.2d 304, incorrectly interprets section 505 of the Fed-

eral Water Pollution Control Act, 33 U.S.C. § 1365 (“the

Clean Water Act” or “the Act”), as authorizing citizen

suits seeking penalties for purely past violations of the

Act.

The petitioner and respondents have consented to the

filing of this brief. Their letters of consent have been

filed with the Court.

STATEMENT OF INTEREST OF AMICI

Amici represent a broad spectrum of U.S. industry,

including chemical production, oil exploration, production,

refining and marketing, electric utilities, railroad freight

transportation, production of steel and other metal! prod-

ucts, ocean tanker terminals, and tool manufacturing.

Like petitioner, each of the amici holds one or more per-

mits issued under the National Pollutant Discharge Elim-

ination System (“NPDES”) established by section 402 of

the Clean Water Act, 33 U.S.C. § 1342. These permits

regulate the discharge of pollutants to navigable waters.

1 The 1972 amendments to the Act required the establishment on

an industry by industry basis of generally applicable effluent limita-

tions that restrict the types, quantities and concentrations of pollut-

ants that may be discharged. These effluent limitations are enforced

through individual NPDES permits which transform the generally

applicable effluent limitations into obligations of a discharger. See

Environmental Protection Agency v. California ex rel. State Water

Resources Control Board, 426 U.S. 200, 203-08 (1976). Each such

permit limitation or standard is referred to as a parameter“ (e..

specific limits for chemicals, metals, heat, etc., contained in the dis-

charge). Section 308 of the Act, 33 U.S.C. § 1818, requires the per-

mittee to monitor each parameter at a specified interval. Monitoring

reports are submitted to the appropriate regional office of the U.S.

Environmental Protection Agency and the state environmental pro-

tection office, who use the reports in evaluating compliance and

determining whether enforcement action is necessary. In addition,

all monitoring reports are available to the public.

3

On a composite basis amici hold 97 NPDES permits for

facilities in 23 states.

Amici are committed to the goals of the Clean Water

Act. To that end, and in coordination with state and

federal regulatory authorities, amici have spent more

than $156 million during the past five years to upgrade

and enhance water pollution control at these facilities.

Nevertheless, each amici is either a current defendant in

one or more citizen enforcement suits under section 505

of the Clean Water Act, a defendant in a recently con-

cluded suit under section 505 or has received notice, pur-

suant to section 505 (b) (1) (A), that an environmental

organization intends to file such a suit. A number of

these actions involve the issue presently before the Court

—whether section 505 authorizes suits to impose penal-

ties for purely past violations of the subject facility’s

NPDES permit. The decision below, therefore, directly

affects amici and raises fundamental questions regarding

the role Congress intended for citizen suits under section

505.

SUMMARY OF ARGUMENT

Section 505’s purpose is abatement of ongoing viola-

tions of the Clean Water Act. The statute authorizes a

citizen suit against a person “alleged to be in violation”

of its obligations under the Act, and where it is shown

that a person is in violation, unlawful conduct may be

enjoined and a civil penalty imposed. Conversely, a suit

may not be brought under section 505 to impose punish-

ment for purely past violations.

The terms of section 505 and its legislative history

confirm this interpretation. They repeatedly focus on the

present tense, that is, persons who are currently violat-

ing the Act and for whom an order requiring compliance

is necessary. Similarly, section 505’s legislative history

emphasizes that abatement is the intended purpose of a

citizen suit. On the other hand, neither the statute nor

4

its legislative history support the view of the court of

appeals below that a citizen suit may be brought solely to

impose civil penalties for previously abated violations.

In reaching that conclusion the court disregarded con-

trary legislative history. Instead, the court made a

superficial comparison of section 505 to section 309, 33

U.S.C. by 1319, the Act’s provision authorizing govern-

ment enforcement. The court reasoned that under sec-

tion 309 the federal government may sue for penalties

for purely past violations and citizens should have the

same authority. That reasoning is flawed. Section 505

does not duplicate government enforcement and looks to

the future rather than to matters that are over and done

with. This reflects the fact that the object of section 505,

like the policy underlying the Clean Water Act, is abate-

ment of ongoing pollution.

ARGUMENT

A. Section 505 Does Not Authorize Citizen Suits To Im-

pose Penalties For Past, Nonrecurring Violations

The court of appeals ruled that section 505(a) author-

izes citizen suits for NPDES permit violations committed

entirely in the past. By the court of appeals’ own ad-

mission, its interpretation is “expansive.” 791 F.2d at

311-12. The court’s position is also contrary to the other

circuits that have addressed the same issue.

The court of appeals approached this statutory inter-

pretation issue in terms of establishing the court’s view

of a reasonable policy for citizen suits, id. at 309-11,

rather than discerning Congress’ intent regarding the

role of citizen suits under section 505. Congress, how-

ever, did not intend section 505 to duplicate government

enforcement or as punishment for past violations, in the

form of civil penalties, without a current environmental

compliance benefit. The court of appeals’ decision disre-

gards that intent and the decision’s impact is severe.

Persons who achieve permit compliance before the filing

5

of a suit under section 505 remain subject to citizen suits

for substantial civil penalties. That extends citizen suits

beyond the purpose Congress specified in the Clean Water

Act. The result will be unnecessary litigation without

benefit to the environment.

1. Section 505 a) of the Clean Water Act authorizes

a citizen suit ag inst a person “alleged to be in viola-

tion” of its obligations under the Act. The statute fo

cuses on abatement of ongoing violations, that is, per-

sons who are “in violation” of an effluent standard or

limitation for whom an order “to require compliance” is

necessary. See §§ 505 (a) and (b); International Paper

Co. v. Ouellette, 107 S.Ct. 805, 815 n.18 (1987) (where

a person “is violating the terms of its permit,” a citizen

may sue under section 505 “to compel compliance”).

Similarly, the “in violation” proviso is the condition

precedent both to an order to enforce an effluent stand-

ard or limitation and the payment of a civil penalty.

This language clearly demonstrates section 505’s pur-

pose as an injunction statute for abatement of ongoing

violations. It was “expressly modeled” after the citizen

suit provision in section 304 of the Clean Air Act, 42

U.S.C. § 7604. Middlesex County Sewerage Auth. v. Na-

tional Sea Clammers Ass’n, 453 U.S. 1, 17 n.27 (1981).

Like section 505 (a), section 304(a) of the Clean Air Act

authorizes injunctive relief against persons “alleged to

be in violation” of statutory obligations. Under each of

the statutes the court can issue an enforcement order or

injunction. Under section 505 (a), the court may supple-

ment its injunction order with civil penalties (“the dis-

trict courts shall have jurisdiction . . . to enforce such

an effluent standard or limitation . . and to apply any

appropriate civil penalties”). Thus, although section 505

adds civil penalties to the injunctive relief available un-

der section 304, section 505 reflects no change in purpose

from section 304. Pawtuxet Cove Marina, Inc. v. Ciba-

Geigy Corp., 807 F.2d 1089, 1092-93 (Ist Cir. 1986).

6

The court of appeals, however, dismissed section 304

of the Clean Air Act as irrelevant to interpretation of

section 505. In a brief footnote the court of appeals sug-

gested that the Clean Air Act and its legislative history

are completely inapposite here because section 304 per-

mits only injunction suits. 791 F.2d at 311 n.12. That

reasoning contradicts this Court’s recognition that sec-

tion 505 was expressly modeled after section 304, and

ignores section 505’s legislative history, which states that

section 505 is “carefully restricted” to the same types of

actions as section 304. See S. Rep. No. 414, 92d Cong.,

Ist Sess. 79 (1971), reprinted in 2 A Legislative History

of the Water Pollution Control Act Amendments of 1972

(“CWA Leg. Hist.) 1497 (1973). Specifically, both

statutes authorize abatement actions, that is, actions to

terminate ongoing violations. “Successful abatement” is

the intended “result of a citizen proceeding.” S. Rep.

No. 414, supra at 81, 2 CWA Leg. Hist. at 1499.*

The court of appeals dismissed this legislative history

as insignificant, observing that such statements do not

show that abatement is section 505’s only purpose. 791

F.2d at 311. That once again disregards the fact that

the legislative history of section 304 of the Clean Air

Act, which is solely an injunction statute, is identical to

the legislative history of section 505 of the Clean Water

Act. See S. Rep. No. 1196, 91st Cong., 2d Sess. 37

(1970), reprinted in 1 A Legislative History of the

Clean Air Act Amendments of 1970 (“CAA Leg. Hist.“

2 See also H.R. Rep. No. 911, 92d Cong., 2d Sess. 133 (1972), 1

CWA Leg. Hist. at 820 (section 505 “closely follows” the concepts of

section 304 but adds civil penalties as well as injunctive relief).

5 See also H.R. Rep. No. 911, supra at 133, 2 CWA Leg. Hist. at

820 (suits under section 505 are abatement actions). Similarly, a

citizen suit may be brought “to abate a violation” of the Act and to

“seek compliance.” Water Pollution Control Legislation: Hearings

Before the Subcomm. on Air and Water Pollution of the Senate

Comm. on Public Works, 92d Cong., Ist Sess. 109, 114 (1971).

7

437 (1974) (under section 304, if government does not

initiate “abatement proceedings. . the citizen might

choose to file the action”).* If section 505 had been in-

tended to authorize, in addition to abatement actions,

suits to impose penalties for purely past violations, then

surely such a distinction between sections 304 and 505

would be clear in the latter provision’s language and

legisiative history. Instead, the legislative history under-

lying each of the two statutes uses the following identi-

cal statement to describe them:

The Courts should recognize that in bringing legiti-

mate actions under this section citizens would be per-

forming a public service and in such instances ,] the

courts should award costs of litigation to such party.

This should extend to plaintiffs in actions which re-

sult in such successful abatement but do not reach a

verdict. For instance, if as a result of a citizen pro-

ceeding 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 [emphasis supplied].

S. Rep. No. 414, supra at 81, 2 CWA Leg. Hist. at 1499;

116 Cong. Rec. 32927 (1970) (Sen. Muskie), 1 CAA

Leg. Hist. at 136.

In Congress’ words, the fundamental object of a citi-

zen suit under either the Clean Water Act or the Clean

Air Act is to bring about “a result”—abatement of on-

going violations—and the court of appeals erred in as-

eribing significantly different meanings to these parallel

statutes. Had Congress intended to authorize su'ts under

section 505 solely to impose penalties, then Congress

would not have repeatedly described sections 304 and 505

as authorizing the same type of abatement actions. This

legislative history provides sound evidence that Congress

* See also H.R. Rep. No. 1783, 91st Cong., 2d Sess. 55 (1970),

1 CAA Leg. Hist. 205 (citizen suits are authorized to seek abatement

of violations).

did not intend that section 505 suits would be filed to

collect civil penalties for violations that had abated prior

to suit.“

2. The court of appeals minimized the importance of

section 505’s emphasis on current, ongoing violations, as

well as the legislative history showing the statute’s pur-

pose as a mechanism for seeking abatement of such vio-

lations. Instead, the court focused on section 309 of the

Clean Water Act, 33 U.S.C. § 1319, which authorizes

government enforcement, and compared that provision to

section 505. The court found the language of the two

provisions similar and concluded that the federal govern-

ment has authority under section 309 to seek penalties

for purely past violations. With those premises, the

court concluded that citizens should have equivalent en-

forcement authority. The court’s reasoning is flawed.

First, the Act specifies significantly different enforce-

ment roles for the government and private plaintiffs.

Section 309 places primary responsibility for Clean Wa-

ter Act enforcement with the federal government and

5 See Trans World Airlines, Inc. v. Thurston, 46% U.S. 111, 121

(1985) (because substantive provisions of Age Discrimination in

Employment Act were derived in haec verba from equal employment

opportunity sections of Civil Rights Act of 1964, interpretation of

Civil Rights Act applies with equal force in context of age discrimi-

nation). See also 2A C. Sands, Sutherland on Statutory Construction

§ 53.01 at 549 (4th ed. 1973).

Respondents subordinate this legislative history to a written

statement by Senator Muskie that a citizen suit may be brought

against one “alleged to be, or to have been, in violation.” 118 Cong.

Rec. 33700 (1972), 1 CWA Leg. Hist. at 179. As petitioner's brief

explains (pp. 28-29), that statement was not considered by other

legislators. Moreover, an isolated statement of a single legislator,

albeit a sponsor of the legislation, is not controlling in analyzing

legislative history. See Consumer Product Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102, 118 (1980). It must be considered

together with the other legislative history, Chrysler Corp. v. Brown,

441 U.S. 281, 311 (1979), which in this case refutes the court of

appeals’ interpretation.

states having adequate authority under their own laws

to enforce the Act. In comparison to government’s “cen-

tral” enforcement responsibility, the role of citizen suits

is of a “limited nature” that only “supplement{s]” gov-

ernment. Middlesex County, 453 U.S. at 13-14, 17 n.27.

In other words, contrary to the court of appeals, section

505 “does not permit the citizen to duplicate the | govern-

ment’s enforcement] powers.” Hamker v. Diamond

Shamrock Chemical Co., 756 F.2d 392, 395 (5th Cir.

1985). For that reason, section 505 does not authorize

suits for purely past violations of the Act. Id.; see also

City of Evansville v. Kentucky Liquid Recycling, Inc.,

604 F.2d 1008, 1014 (7th Cir. 1979), cert. denied, 444

U.S. 1025 (1980).

The limited role intended for citizen enforcement is

corroborated by the sixty-day notice requirement in sec-

tion 505(b). A citizen suit is barred where, in response

to a section 505(b) notice, the government brings an ac-

tion “to require compliance.” As explained in Hamker v.

Diamond Shamrock, 756 F.2d at 396:

[I]t is most reasonable to read the [§ 505 (b)] re-

quirement that notice also be given to the alleged

violator as an indication that where the violator

responds to the notice by bringing himself into com-

pliance, the citizen loses the right to bring suit un-

der 1365(a) [§ 505 (a)], just as he loses the right

to commence an action where the Administrator [of

the EPA] or the state responds by diligently prose-

cuting an action against the alleged violation

[citations omitted].

The court of appeals’ contrary position also fails to

recognize important differences in the language of sec-

tions 309 and 505. As indicated above, in section 505

“there is no retreat from the present tense.” Pawtuxet

Cove, 807 F.2d at 1092. Consistent with the statute’s

focus on the present, it is directed against a person who

is “in violation” and for whom an order “to require

10

compliance” is necessary. See §§ 505(a) and (b). More-

over, “in violation” is a prerequisite both to enforce-

ment orders and civil penalty relief. Similarly, a con-

dition precedent to a section 505 suit is that the plaintiff

give notice “to the state in which the alleged violation

occurs,” and the plaintiff must be a person whose interest

“ig or may be adversely affected.” See §§ 505(b) (1) (A)

(ii) and 505(g) (emphasis supplied).

In contrast, in section 309 the term “in violation” is

confined to subsection 309 (a). That provision authorizes

administrative compliance orders based on a finding that

the permittee is “in violation” of an effluent limitation,

ete., and prior issuance of such a finding under subsec-

tion 309(a) is also the predicate for a civil action by the

government under subsection 309(b). But the “in viola-

tion” provision is otherwise absent from section 309."

Thus, assuming that section 309 authorizes a govern-

ment-initiated civil penalty suit for purely past viola-

tions, the significant differences between that provision

and section 505 demonstrate that the latter limits citi-

zen suit jurisdiction to ongoing violations.

In short, the court of appeals’ decision contradicts the

terms of section 505 and its underlying policy. Congress

did not establish section 505 to duplicate government en-

forcement or to impose punishment, without any current

compliance benefit, on persons who failed to comply fully

in the past. For that reason, section 505 looks to the

future, rather than to matters that are over and done

with. This reflects the fact that the object of section 505,

like the policy of the Clean Water Act, is abatement of

pollution.

*Unlike § 505(a)’s “in violation” condition precedent to civil

penalties in a citizen suit, section 309 authorizes civil penalties

against anyone who “violates” the Act or a previously issued admin-

istrative order under § 309 (a)

11

B. Jurisdiction Under Section 505 Requires A Showing

That Violations Are Ongoing, And Jurisdiction Is Not

Established Merely On The Basis Of An Allegation

That Continuing Violations Are Likely

Noting that subsection 505(a) confers jurisdiction

where a person is “alleged to be in violation,” the court

of appeals implied that a possible alternative basis for

decision here is that the respondents’ complaint alleged

in good faith that petitioner’s violations would continue.

But the court ruled that section 505 jurisdiction extends

to purely past violations, making it unnecessary to con-

sider the question of continuing violations. 791 F.2d at

308 n.9.

The First Circuit’s recent Pawtuxet Cove decision is in

part similar to that aspect of the decision below. On the

one hand, the First Circuit agreed with the Fifth Circuit

(Hamker v. Diamond Shamrock) that section 505 does

not extend to purely past violations. 807 F.2d at 1092-

94. The First Circuit also held, however, that section

505 confers jurisdiction in cases of likely continuing vio-

lations that require injunctive relief, and added that

even though injunctive relief may later be denied (be-

cause violations had abated), penalties could be imposed

where jurisdiction attached based on good faith allega-

tions of the need for an injunction. Id. at 1094. The

First Cireuit described its interpretation as somewhat

liberal, but necessary because “even a persistent violator

may, temporarily, ‘clean up his act.’” See id. at 1093.

That concern, the persistent violator who is in com-

pliance temporarily, is not implicated in this case, as

explained in petitioner’s brief (at pp. 19-21, 41-42).

Furthermore, the mere good faith allegation of an on-

going or continuing violation of the Clean Water Act is

insufficient to support injunctive relief or the imposition

of civil penalties. The First Circuit’s contrary sugges-

tion is based on the fact that section 505(a) refers to a

person who is “alleged to be in violation [emphasis sup-

plied].“ 807 F.2d at 1093. Congress, however, expressly

modeled section 505, including the quoted phrase, after

section 304 of the Clean Air Act. Section 304 limits

lief to injunctions, which may not be granted merely

the basis of past unlawful actions. O Shea v. Littleton,

414 U.S. 488, 495-96 (1974). The First Cireuit's liberal

interpretation of “alleged to be in violation not,

therefore, Congress’ intent when it crafted that lan-

guage for section 304 or incorporated it into section 505.

“al-

con-

Moreover, the First Cireuit's analogy between the

leged to be in violation” proviso and the amount in

troversy in diversity cases is misplaced. The rationale

underlying the amount in controversy rule is that a pre-

liminary jurisdictional determination regarding damages

should not deny the plaintiff in a diversity case a federal

court trial of its claim. Deutsch v. Hewes Street Realty

Corp., 359 F.2d 96, 99 (2d Cir. 1966). That rationale

does not apply to a suit under section 505 and is not

justification for conferring jurisdiction based on a party’s

pleading.

In any event, if section 505’s “in violation” pre-

requisite can be satisfied by a good faith allegation that

continuing violations are likely, such allegations, and the

inquiry on which they are based, must be evaluated

against an objective standard. That standard must ree-

ognize section 505’s fundamental

ongoing violations, rather than imposition of civil penal-

ties (and awards of attorneys’ fees) as punishment for

“matters over and apparently done with.” Pawtuxet

Cove, 807 F.2d at 1093; Hamker v. Diamond Shamrock,

756 F.2d at 396. See also Fed. R. Civ. P. 11.”

—

The plaintiff's inquiry should not be limited to a review of

periodic (quarterly) monitoring reports required under § 308

the Act, see n.1, supra, which may not reflect current compliance

status. Rather, the citizen plaintiff must inform itself regarding the

defendant's compliance history, recent improvements in wastewater

treatment facilities and compliance status up to commencement of

the suit. As Pawturet Cove suggests, 807 F.2d at 1094, in evaluat-

13

Furthermore, many industrial facilities have several

discharge points and at each discharge a number of reg-

ulated parameters. See n.1, supra. An allegation of con-

tinuing violations based on recent noncompliance with

one of those parameters should not allow a plaintiff to

revive past, previously abated noncompliance of un-

related parameters. Sierra Club v. Kerr-McGee Corp.,

23 Env’t Rep. Cas. (BNA) 1685, 1690 (W.D. La. 1985).

Put another way, a series of temperature violations dur-

ing the winter of 1987 does not allow a citizen to resur-

rect unrelated violations in 1983 which had previously

abated. To hold otherwise would be inconsistent with

the role of citizen suits, which may be brought to address

only specific violations and conduct indicative of continu-

ing or renewed violations justifying an injunction.

Friends of the Earth v. Consolidated Rail Corp., 768 F. 2d

57, 63 (2d Cir. 1985) ; Pawtuxet Cove, 807 F.2d at 1093.

This view is also consistent with section 309(d) of the

Act which subjects each separate violation to the statu-

tory maximum penalty of $25,000 per day. See § 313

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

101 Stat. 7, 45.

In short, a citizen suit cannot revive previously abated

violations. That is because section 505’s object, like the

policy of the Clean Water Act, is achieving compliance

and section 505 looks to the future rather than to mat-

ters over and done with.

ing a plaintiff’s allegations the district court should consider, among

other things, the willfulness of violations, the sincerity of the de-

fendant’s assurances against future violations, and the isolated or

recurrent nature of the violations (isolated NPDES violations are

expected at any facility, Marathon Oil Co. v. Environmental Pro-

tection Agency, 564 F.2d 1253, 1272-73 (9th Cir. 1977) ).

The criteria outlined above do not impose an undue burden on the

plaintiff. In response to the standardized letter that environmental

organizations frequently use to give the sixty days notice required

by 8 505 (b) (1) (A) the would-be defendant quite often provides

considerabie information, such as that identified above, regarding

compliance status.

14

CONCLUSION

For the foregoing reasons, the judgment below should

be reversed.

Of Counsel:

JOHN R. JENCHURA

Consolidated Rail Corporation

1138 Six Penn Center Plaza

Philadelphia, PA 19103

Counsel for Consolidated Rail

Corporation

PHILLIP CONTRERAS

Ferro Corporation

One Erieview Plaza

Cleveland, Ohio 44114

Counsel for Ferro Corporation

RICHARD S. COHEN

Jersey Central Power & Light

Company

Box 1279R

Morristown, New Jersey 07960

Counsel for Jersey Central Power

& Light Company

JacK M. ARNOLD

McDermott Incorporated

1010 Common St., Suite 2745

New Orleans, LA 70112

Counsel for McDermott

Incorporated

JAMES E. BAINE

Murphy Oil USA, Inc.

Murphy Building

200 Peach Street

El Dorado, Arkansas 71730

Counsel for Murphy Oil USA, Ine.

* Counsel of Record

Respectfully submitted,

Scott M. DuBorr *

McNEILL WATKINS II

JOHN P. PROCTOR

BisHop, LIBERMAN, COOK,

PURCELL & REYNOLDS

1200 Seventeenth St., N.W.

Washington, D.C. 20036

Phone: (202) 857-9800

Counsel for Amici Curiae

TIMOTHY N. ATHERTON

Pennsylvania Electric

Company

1001 Broad Street

Johnstown, PA 15907

Counsel for Pennsylvania

Electric Company

NATHAN M. EDELSTEIN

EDELSTEIN & BERNSTEIN

3131 Princeton Pike

Lawrenceville, NJ 08648

Counsel for Powell Duffryn

Terminals, Inc.

Josy A. BERLANGA

Shell Oil Company

P.O. Box 2463

Houston, Texas 77001

Counsel for Shell Oil Company

GRANT VAN HORNE

112 South Cedar Street

Auburn, Indiana 46706

Counsel for Universal Tool &

Stamping Co., Ine.

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