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

|

No. 86-473

IN THE

, US.

FILED

MAY 27 6?

PH F. SPANIOL,

Supreme Court of the Wnite St .

JR.

—

October Term, 1986

— > a

GWALTNEY OF SMITHFIELD, LTp.

Petitioner,

Vv.

CHESAPEAKE BAY FOUNDATION, INC.

and

NATURAL RESOURCES DEFENSE COUNCHL.

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICI CURIAE OF FRIENDS OF THE EARTH,

SIERRA CLUB, NATIONAL AUDUBON SOCIETY, PUBLIC

INTEREST RESEARCH GROUP OF NEW JERSEY,

MASSACHUSETTS PUBLIC INTEREST RESEARCH

GROUP, ATLANTIC STATES LEGAL FOUNDATION, AND

CONNECTICUT FUND FOR THE ENVIRONMENT IN

SUPPORT OF RESPONDENTS

BRUCE J. TERRIS

JAMES M. HECKER

TERRIS, EDGECOMBE, Hecker &

WAYNE

1121 12th Street, N.W.

Washington, D.C. 20005

(202) 682-2100

Attorneys for Amici Curiae

May, 1987

—_--- — ta tie ee ~e- dig

Ve

TABLE OF CONTENTS

DERE Ge RTC CRMB OED ccrcceccctccceccscesssesssceresccscoccces

STATEMENT OF INTEREST OF AMICI .......0000.....

SUMMARY OF ARGUMENT. ......0.....cccccccceecceeeeeeeees

FTE | centiitienntannenstinreemesrmmnmmmnmmneeee

A.

THE LANGUAGE AND STRUCTURE OF

THE WATER ACT AUTHORIZES CITI-

ZEN SUITS SEEKING PENALTIES FOR

SORES PEROUEMED cosmssserrssssssssmenyeeccsssmmeces

THE LEGISLATIVE HISTORY OF THE

WATER ACT SHOWS THAT THE ACT AL-

THORIZES CITIZEN SUITS SEEKING

PENALTIES FOR PAST VIOLATIONS ......

. THE LANGUAGE AND LEGISLATIVE

HISTORY OF THE 1987 AMENDMENTS

TO THE WATER ACT SHOW THAT THE

ACT AUTHORIZES CITIZEN SUITS

SEEKING PENALTIES FOR PAST VIOLA-

TED ciatindeeretectcnsestceninnvimmnysneemnecrmeesee

THE WEIGHT OF JUDICIAL AUTHORI-

TY SUPPORTS RESPONDENTS’ POSI-

TION THAT THE ACT AUTHORIZES CIT-

IZEN SUITS SEEKING PENALTIES FOR

FOS VRRP EIUEED cerccnssscscsscevestssessvenssasessceee

THE EVIDENTIARY PROBLEMS WHICH

WOULD RESULT UNDER PETITIONER'S

INTERPRETATION SHOW THAT IT IS

CONTRARY TO THE INTENT OF THE

FSS cnnmapndnenierernamepnensmanmmmnemnmnemnamenees

CIVIL PENALTIES FOR PAST VIOLA-

TIONS ARE ESSENTIAL TO CARRY OUT

THE STATUTORY PURPOSE OF DETER-

RING VIOLATIONS BY PETITIONER

AND OTHER POLLUTERS ........................

PERMITTING CITIZEN SUITS BASED

ON PAST VIOLATIONS WILL NOT HAVE

THE ADVERSE EFFECTS ALLEGED BY

PETITE ‘bictvessimennscsesssssssnnasssveensevssusmanereess

IT derctenstDncccteeseqsmescnnscennenvensvemaumemsssesvrnenes

an

1S

TABLE OF AUTHORITIES

CASES:

Adams qui tam v. Woods, 6 U.S. (2 Cranch) 336

| ee TE

American Petroleum Institute v. EPA, 540 F.2d 1023

te A | en

Atlantic States Legal Foundation v. Al Tech Special-

ty Steel Corp., 635 F. Supp. 284 (N.D.N.Y. 1984)

Bowsher v. Synar, 106 S. Ct. 3181 (1986) .............

Buckley v. Valeo, 436 US. 0 CORGID dmsctieetens

Chemical Manufacturers Ass'nv. Natural Resources

Defense Council, 470 U.S. 116 (1985) 00.00.0000.

Chesapeake Bay Foundation v. Bethlehem Steel

Corp., 652 F. Supp. 620 (D. Md. 1987) .............

Chesapeake Bay Foundation v. Gwaltney of Smith-

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

Connecticut Fund for the Environment v. The Job

Plating Co., Inc., 623 F. Supp. 207 (D. Conn.

| SE

i )

Davis v. Passman, 442 U.S. 228 (1979)...

Fishel v. Westinghouse Electric Corp., 617 F. Supp.

Se ee

Friends of the Earth vy. Archer Daniels Midland Co..,

24 Env't Rep. Cases (BNA) 1993 (N.D.NLY.

| Nn

Hamker v. Diamond Shamrock Chemical Co., 756

PB Et Lt 4, ee

Locust Lane v. Swatara Township Authority, 636 F.

Suge. $34 (RED. Pe. GBB ccnnccnciicnnenen

Marvin v. Trout, 199 U.S. 212 (1905)...

Middlesex County v. National Sea Clammers, 453

JB. 0 COGBG D ccccccccencencseccscnsccnnnnnnnnennnanennnnnen

PAGE

16,

15,

10

PAGE

Pawtuxet Cove Marina v. Ciba-Geigy Corp., 807

F.2d 1089 (Ist Cir. 1986) .....ccceccceeseeeeteeeeeees 15, 21,

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

Supp. 842 (N.D.N.Y. 1984) oo... cccceeeteeeeneees 14

Sierra Club v. C.G. Manufacturing, Inc., 638 F.

Supp. 492 (D. Mass. 1985) ........ccccccecceeeeeeeeeteeees 14

Sierra Club v. Copolymer Rubber & Chemical Corp.,

621 F. Supp. 1013 (M.D. La. 1985)... 15

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

IRs MD | dsccscccisdencsessacecccsseccnssocscoesees 14, 23

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

Cases (BNA) 1685 (W.D. La. 1985) .......000....... 15, 18

Sierra Club v. Raytheon Co., 22 Env’t Rep. Cases

(BNA) 1050 (D. Mass. 1984)... cece 14

Sierra Club v. Simkins Industries, 617 F. Supp. 1120

EEE CE 14

SPIRG v. American Cyanamid Co., 23 Env’t Rep.

Cases (BNA) 2644 (D.N.J. 1985)... eee «14, 16

SPIRG v. Anchor Thread Co., 22 Env’t Rep. Cases

(BNA) 1150 (D.N.J. 1984) ocecceeeeeeeees 14

SPIRG v. AT&T Bell Laboratories, 617 F. Supp.

I os sccnssensevsnconacces passim

SPIRG v. Georgia-Pacific Corp., 615 F. Supp. 1419

cia ccccnscsntssenseceneressoreseees 11, 14

SPIRG v. Hercules Corp., 23 Env’t Rep. Cases

(BNA) 2081 (D.N.J. 1986) 0... cecceeeeeeeeees 16

SPIRG v. Jersey Central Power & Light Co., 642 F.

SEE EE, WEMED ssccsccsccascovsserscscocssocscoecsee 14

SPIRG v. Monsanto Co., 600 F. Supp. 1474

sire ciccinaaneansenecocosncescces 6, 11, 14, 27, 28

SPIRG v. National Starch and Chemical Corp., 23

Env’t Rep. Cases (BNA) 1982 (D.N.J. 1985) ... 14, 16

SPIRG v. P.D. Oil & Chemical Storage, Inc., 627 F

Supp. 1074 (D.N.J. 1986) 0.0... eeeeeseeeseeeeeee: 14

SPIRG v. Ragen Precision Industries, Civil No. 83-

SE 14

iv

PAGE

SPIRG v. Tenneco Polymers, 602 F. Supp. 1394

GRRE. UIE - dccnntssndincirninietnssnnidenuateabibiiicnbdiiaidiukes 14

State of Alabama ex rel. Graddick v. Veterans Ad-

ministration, 648 F. Supp. 1208 (M.D. Ala. 1986) 14

Tull v. United States, 481 U.S. —— (April 28.

FUT” eenscunceveinisannnoensniipenieaniaiinndigaaaaiiaaiaaiiiiiameeniiiane Ame

U.S. Steel Corp. v. Train, 556 F.2d 822 (7th Cir.

DTT D : Sccsitnnliniseoinesanninishadiansingtidaiasantidaibabiaisideseeds 25

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

5 Seen eee OTR EE iy artnet 29

United States v. Amoco Oil Co., Civil No. 80-0801

ery MEE: SPEIER" caibiceceieedtenticicitablinatiaie itis Sara 26

United States v. Earth Sciences, Inc., 599 F.2d 368

SE TEENS UPD <cécensdcichasenidaieiusendiaisidelitenbiiaiaiics ies 8, 21

STATUTES:

Act of March 2, 1863, 12 Stat. 696

ee es Ie ID “Mnclissiieettcsteiddendcduicpinementitiiis 29

Clean Air Act

ae nc: PUNE deasinctdinchascidacenlactiiienkintncsnecinacitsiisicsis - 8

False Claims Act, 31 U.S.C. 3730(b) ........ 29, 30

Federal Water Pollution Control Act

Section 301(b)(1), 33 U.S.C. 1311(b)(1) ..... 23

SOCHIOR SUB, FF UB... 1FIB ccccccccccccsccccsccscccceess 15

ES een 7

Section 309(a), 33 U.S.C. 1319(a) oo... y

Section 309(a)(1), 33 U.S.C. 1319(a)(1) ..... 7

Section 309(a)(3), 33 U.S.C. 1319(a)(3) ..... 7

Section 309(c), 33 U.S.C. 1319(¢c) wo. &

Section 309(d), 33 U.S.C. 1319(d) wo... passim

OCU TI, BO UTA... BID cccccevsiencccesecncenssovees passim

Section 505(a), 33 U.S.C. 1365(a) wc. passim

Section 505(a)(1), 33 U.S.C. 1365(a)(1) ..... passim

PAGE

Section 505(b)(1)(A), 33 U.S.C.

PIE is ncrrnceinsinimscasniniensnddstassinns 6

Section 505(c)(3), 33 U.S.C. 1365(c)(3), as

ermemtad, 161 Beat. TS ....ccccccccccecccccccscvecreseesss 27

Section 505(g), 33 U.S.C. 1365(g) ........... 30

Marine Protection, Research and Sanctuaries Act, 33

i: IIE Gein shin cancaiesaliddachatebiinlniighgtiidnsebasionen )

Noise Control Act, 42 U.S.C. 4290.0... )

Patent Act of 1952, 35 U.S.C. 292 oo... eee 30

Water Quality Act of 1987, 101 Stat. 7.0... 12

Section 314, 101 Stat. 46-49 00. 12-13

Section 504, 101 Stat. 75 ....ccccceeeeeeeeeens 27

LEGISLATIVE MATERIALS:

H. Rep. No. 1004, 99th Cong., 2d Sess. 139 (1986) . 26

H. Rep. No. 911, 92d Cong., 2d Sess. (1972) ........ 11

S. Rep. No. 50, 99th Cong., Ist Sess. 28 (1985) ... passim

S. Rep. No. 414, 92d Cong., Ist Sess. 80 (1971) .. passim

S. Rep. No. 50, 99th Cong., Ist Sess. (1985) 3, 6, 12, 13, 27

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ...... 1]

BIG Camm. Res. SIGRS CIGTEZ) ...ecccreccsccscesvssescesscoccsee 10

118 Cong. Rec. 33697 (1972) ......cecccecceeseeeeereeeees 9

118 Cong. Rec. 33700 (1972) ......ccccccccceessseeeeeeeeeeees )

133 Cong. Rec. S 737 (daily ed., Jan. 14, 1987) ... 27

REGULATIONS:

II cesinicsvasiosesccescccsscessecniensemnssbecnicnts 25

es EOD | cecticcicnesncenszansicconitoninnccensenese 16

HOD seicbtienseticcnnieserescsnnesaincnnsotcins 15

Is IED. cctesitnsisensciinsenegiassensnsininendcnmnannaienis 25

rs EE | Sscitnesscedenctnntiicinnenestemaninseen 16

I a 16

vi

MISCELLANEOUS:

EPA Civil Penalty Policy For Major Source Violators

of Clean Air Act and Clean Water Act (July 8,

1980), Env’t Rep. (BNA) (Fed. Laws) 41:1101 .

General Accounting Office, RCED-84-53, December

2, 1983, Wastewater Dischargers Are Not Comply-

ing with EPA Pollution Control Permits .............

Hearings on Implementation of the Federal Clean

Water Act Before the Subcommittee on Investiga-

tions and Oversight of the House Committee on

Public Works and Transportation, 98th Cong., 2d

MOOS. CRERCG 7, BGBE) .2.ccccccceseccecccsccccsencevccsceccceess

Note, The History and Development of Qui Tam,

I I I

U.S. Environmental! Protection Agency, Agencywide

Compliance and Enforcement Strategy and Strate-

gy Framework for EPA Compliance Programs

ERE RSE aren pores Sav tna

U.S. Environmental Protection Agency, Policy on

Civil Penalties, EPA General Enforcement Policy

GM-21 (Feb. 16, 1984), Env’t Rep. (BNA) (Fed.

Oe I, since cia iain etait ane

U.S. Environmental Protection Agency, Clean Water

Act, Penalty Policy for Civil Settlement Negotia-

tions (February 11, 1986) oo. ceecccceeeeeeeeeeee

15 Env’t Rep. (BNA) (Current Developments) 686

Ne RSE TE Ehren

PAGE

26

29

22

21, 26

el

No. 86-473

IN THE

Supreme Court of the United States

October Term, 1986

>

GWALTNEY OF SMITHFIELD, LTD.

Petitioner,

V.

CHESAPEAKE BAY FOUNDATION, INC.

and

NATURAL RESOURCES DEFENSE COUNCIL,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICI CURIAE OF FRIENDS OF THE EARTH,

SIERRA CLUB, NATIONAL AUDUBON SOCIETY, PUBLIC

INTEREST RESEARCH GROUP OF NEW JERSEY,

MASSACHUSETTS PUBLIC INTEREST RESEARCH

GROUP, ATLANTIC STATES LEGAL FOUNDATION, AND

CONNECTICUT FUND FOR THE ENVIRONMENT IN

SUPPORT OF RESPONDENTS

This brief amici curiae is submitted in support of respondents

Chesapeake Bay Foundation, Inc. and Natural Resources

Defense Council. 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

The seven organizations submitting this brief, together with the

two plaintiff organizations, have been the primary plaintiffs

bringing citizen suits to enforce the Federal Water Pollution Con-

trol Act (“the Water Act”) during the past several years. Their

members live and engage in recreational activities on or near the

waterways into which companies discharge pollutants regulated

by the Water Act. Petitioner's interpretation would allow dis-

chargers who violate their permits and discharge excessive

2

amounts of pollution into this nation’s waterways to avoid all

liability for civil penalties under the Water Act if the violations

ceased prior to the filing of a citizen suit. Amici submit that this

interpretation would remove an essential incentive for polluters to

comply with their permits, thereby adversely affecting amici’s

members and the public at large.

Amici have brought numerous citizen suits under the Water

Act in recent years. Contrary to petitioner’s arguments (Pet. Br.

30-33), these suits were not motivated by the prospect of

obtaining settlement monies for themselves, but rather by the

knowledge of widespread noncompliance by dischargers and lax

enforcement by government officials. For example, after analyz-

ing a random sample of 531 major dischargers in six states, the

General Accounting Office reported to Congress in 1983 that 82%

exceeded their permit limits at least once in an 18-month period,

and 31% exceeded their permit limits by 50% or more in at least 4

consecutive months during that time. Wastewater Dischargers

Are Not Complying with EPA Pollution Control Permits, Gen-

eral Accounting Office, RCED-84-53, December 2, 1983, p. 7. At

the same time, the GAO found that, on a national basis, the

number of EPA enforcement actions declined from 1,523 in 1977

to 410 in 1982. Jd. at 24-25. The EPA official who testified

before a House oversight committee in 1984 concerning this

report candidly acknowledged the shortcomings of governmental

enforcement of the Water Act:'

With respect to the report itself, Mr. Chairman, regard-

less of how one measures, regardless of how one counts,

regardless of whether you look at the permittees in a par-

ticular category over 3 months, 12 months or 18 months.

the trend is, in fact, the same: We continue to see a signifi-

cant degree of noncompliance by permittees and we con-

tinue to see the EPA and the States falling behind in their

workload.

|. Hearings on Implementation of the Federal Clean Water Act Before the

Subcommittee on investigations and Oversight of the House Committee on

Public Works and Transportation, 98th Cong., 2d Sess. 51 (March 7.

1984) (testimony of Jack E. Ravan, EPA Assistant Administrator for Water).

3

The GAO concluded in its report (p. 42) that significant enforce-

ment resources were needed to correct this problem:

We anticipate that the program’s problems will continue

because the underlying causes of many of these problems

lie in the area of limited resources at both the federal and

state levels. * * * Stronger enforcement against permit

noncompliance is needed. * * * What can be expected

* * * in the foreseeable future is continued high noncom-

pliance and inadequate enforcement unless significant

resources are directed to the program.

As a result, amici began using the citizen suit provisions of the

Water Act on an intensive basis. Subsequently, the Senate com-

mittee report On the 1987 amendments to the Water Act stated

(S. Rep. No. 50, 99th Cong., Ist Sess. 28 (1985)):

Citizen suits are a proven enforcement tool. They operate

as Congress intended—to both spur and jas a} supple-

ment to government enforcement actions. They have

deterred violators and achieved significant compliance

gains.

SUMMARY OF ARGUMENT

A. Petitioner's interpretation of Section 505(a)(1) of the

Act is inconsistent with the language and structure of the Act. It

conflicts with this Court’s recent decision in Tull v. United States

that civil penalties necessarily relate to the punishment of past

acts and are independent of injunctive relief. It conflicts with the

60-day notice provision of that Section. It unreasonably treats

dischargers with identical noncompliance records totally differ-

ently based on the happenstance of when a citizen suit is filed.

And it ignores the similar authorization for the imposition of civil

penalties in both federal and citizen suits.

B. The legislative history of the ‘Vater Act demonstrates that

Congress intended to authorize both citizen and government

enforcement actions involving past violations, whether continuous

4

or intermittent. That history further demonstrates that Con-

gress int.u.ded to make citizen and government enforcement pow-

ers co-extensive. If the United States and the states could seek

civil penalties for past violations, but citizens could not. citizens

could not effectively substitute for these governments when they

fail to carry out their responsibility to enforce the Water Act.

C. The ianguage and legislative history of the 1987 amend-

ments to the Water Act further demonstrate that Congress

intended to authorize suits for past violations. Congress gave

EPA authority to assess civil penalties for past violations in

administrative proceedings, and stated that citizens could, in

some circumstances, seek civil penalties for past violations result-

ing from the same discharge as that involved in those administra-

tive proceedings.

D. The overwhelming weight of judicial authority is inconsis-

tent with petitioner’s interpretation. At least 22 lower court

decisions support respondents, while only 4 support petitioners.

E. Petitioner’s interpretation would cause serious evidentiary

problems. Dischargers do not monitor and report the amount of

pollutants in their discharges on a continuous or, in many cases,

even a frequent, basis. As a result, distinguishing between

chronic, ongoing violations and past, completed ones would be an

extremely difficuit task. The legislative history of the Act shows

that Congress did not intend enforcement actions to require

lengthy fact-finding or discretionary decisionmaking, but

intended instead that such actions be based on precise and man-

ageable standards.

F. Petitioner’s interpretation would remove an essential

incentive for dischargers to comply voluntarily with their permits.

The whole purpose of civil penalties is to induce timely and volun-

tary compliance. EPA, the agency charged with administering

the statute, has stated that penalties for past violations are essen-

tial to carry out this purpose even when the violations have

ceased. Otherwise, a discharger could totally escape liability by

halting its violations before a citizen suit is filed.

5

G. Permitting citizens to sue for past violations would not

have the adverse effects claimed by petitioner and its amici. Citi-

zens, like EPA, have every incentive to use their resources for

cases involving numerous ana frequent violations, not isolated

past violations. Both Congress and the executive branch have

recently stated that citizen suits are operating as Congress

intended and are not interfering with federal enforcement activi-

ties. Finally, the constitutional arguments raised by petitioner

and its amici are insubstantial.

ARGUMENT

A. THE LANGUAGE AND STRUCTURE OF THE WATER

ACT AUTHORIZES CITIZEN SUITS SEEKING PEN-

ALTIES FOR PAST VIOLATIONS

Section 505(a)(1) of the Water Act authorizes a citizen suit

against any person “alleged to be in violation” of an effluent

standard or limitation under that Act. Petitioner argues that

because these words are in the present tense, they should be read

to mean that citizen suits are limited to ongoing violations that

have not abated by the time the suit is filed. Pet. Br. 11. Peti-

tioner therefore concludes that citizens cannot bring suit seeking

civil penalties for purely past violations. /bid.

Petitioner's interpretation of Section 505(a) (1) is inconsistent

with the language and structure of the Act for four reasons—it

ignores the ordinary meaning of the word “penalty” as relating to

the punishment of past acts, it conflicts with the 60-day notice

provision of that Section, it treats similarly situated defendants

completely differently, and it ignores the similar authorization for

the imposition of civil penalties in both federal and citizen suits.

First, the very existence of a provision for civil penalties on its

face contemplates punishment of past acts. As this Court

recently stated in Tul/ v. United States, 481 U.S. (April

28, 1987), slip op. at 10, the civil penalty provision’s “authoriza-

tion of punishment to further retribution and deterrence clearly

evidences that this subsection reflects more than a concern to

6

provide equitable relief.” This Court then held that civil penal-

ties are independent of, and not intertwined with or incidental to,

injunctive relief. Jd. at 12. Thus, “{p]enalties are necessarily

imposed on past violations.” SP/RG v. AT&T Bell Laborato-

ries, supra, 617 F. Supp. at 1198. Obviously, they cannot be

imposed on violations that have not yet occurred. Consequently,

the phrase “and apply appropriate civil penalties under Section

309(d)” must mean that a court may impose civil penalties for

past violations in a citizen suit under Section 505.

Petitioner's construction puts far too much weight on Congress’

use of the present tense. “A plausible construction of the lan-

guage is that one is ‘in violation’ and continues to be ‘in violation’

by having ‘violated."” SPIRG v. Monsanto Co., 600 F. Supp.

1474, 1476 (D.N.J. 1985). The words “to be in violation” there-

fore may reasonably be read as to include unlawful conduct

occurring before a lawsuit is filed as well as unlawful conduct that

continues into the present.

Furthermore, if Congress had used the past tense in conjunc-

tion with the civil penalty provision, it “might have created the

implication that citizen suits could not seek injunctive relief.”

SPIRG v. AT&T Bell Laboratories, supra, 617 F. Supp. at 1196.

Indeed, as we show below (pp. 12-13), when Congress amended

the Act this year and used the past tense (“has violated”) to

describe EPA’s new administrative civil penalty authority, it

stated its intention in the legislative history to limit such authority

to purely pasf Violations. S. Rep. No. 50, supra, p. 100.

Second, the combination of the civil penalty provision and the

notice requirement in Section 505(b)(1)(A) also shows that

Congress did not expect citizens to bring actions only for viola-

tions occurring at the time a suit was filed. That subsection

requires that citizens give 60 days’ notice before filing suit to

governmental agencies to “give the administrative enforcement

office an opportunity to act on the alleged violation.” S. Rep. No.

414, 92d Cong., Ist Sess. 80 (1971). However, if petitioner's

argument were correct, Congress would, in effect, be telling citi-

zens to provide 60 days’ notice of alleged violations before filing

7

suit, but then telling them they could not bring suit for civil

penalties based on the same violations. Instead, suit could only

be brought if new violations-not covered by the notice let-

ter—were occurring at the time of suit. We submit that Congress

could not have intended such an absurd result.

Third, petitioner’s argument would have the effect of treating

dischargers with identical records of noncompliance in totally

different ways. Thus, assume that Company A has violated the

Act 100 times over a three-year period, but stops its viclations a

month before the citizen suit is filed, while Company B has the

same number of violations over the same time period, except that

five of its violations occurred after the citizen suit was filed.

Under the amended Water Act, each violation is subject to a

penalty up to $25,000 per day for each violation. 33 USC.

1319(d), as amended, 101 Stat. 45. Under petitioner's interpre-

tation, Company A is not subject to any civil penalty, while

Company B is subject to a civil penalty up to $2,500,000. We

submit that it makes no sense to impose large penalties on a

company for pre-complaint violations because it happened to

have some violations after the complaint was filed, but no penal-

ties on the company which had no violations after a complaint was

filed.

Finally, the structure of the federal enforcement provisions of

the Act shows that Congress intended to authorize civil penalties

for past violations. The Administrator of EPA is empowered to

take enforcement actions by Section 309 of the Act. 33 U.S.C.

1319. The citizen suit provision specifically cross-references the

federal government's civil penalty authority in Section 309(d).

All of the federal enforcement provisions are couched in the

present tense. Under Section 309(a)(1), the Administrator is

authorized to take enforcement action, including court action,

whenever he “finds that any person is in violation of any condition

or limitation * * *” under the Act (emphasis added). Under

Section 309(a)(3), the Administrator may issue a compliance

order when he “finds that any person is in violation” of the Act

(emphasis added). Under Section 309(c), criminal penalties

may be imposed on “any person who willfully or negligently

violates” the Act (emphasis added). Under Section 309(d),

civil penalties may be imposed against “any person who violates”

the Act (emphasis added). Consequently, if the “present tense”

is deemed to limit jurisdiction in citizen suits, the same “present

tense,” used in all of the Act’s enforcement provisions, must

equally limit suits for civil penalties by the United States.

There is no basis for imposing such a limitation on suits by the

United States. On the contrary, it is well established that the

United States may sue for penalties under Section 309(d) based

on past violations, without a showing of violations at the time of

suit. In Tull v. United States, supra, this Court held that the

government’s claim for civil penalties under the Water Act was

not “incidental to” its claim for injunctive relief, and that the

government could prosecute that claim even though it “was aware

when it filed suit that relief would be limited primarily to civil

penalties, since the [defendant] had already sold most of the

properties at issue.” Slip op. at 12. Similarly, the Court of

Appeals for the Tenth Circuit has held that “[i]t is plainly incon-

sistent with the strong enforcement policy of the Act to declare

that EPA must choose between prevention of ‘future pollution

discharges and punishment of past violations through civil penal-

ties. The administrator needs both sanctions.” United States v.

Earth Sciences, Inc., 599 F.2d 368, 376 (10th Cir. 1979).

No reason exists for believing that Congress intended one

meaning for the language in Section 309(d) for suits brought by

EPA and another meaning for that language for suits brought by

citizens. See SP/RG v. AT&T Bell Laboratories, supra, 617 F.

Supp. at 1198. Indeed, the cross-reference to Section 309(d) in

Section 505(a)(1) necessarily means that citizens, like EPA, can

bring enforcement actions to assess penalties for past violations.”

2. We know of no federal statutes under which past violations can be pun-

ished only if they are continuing or repeated at the time of suit. This is true even

though numerous statutes similerly use the present tense in provisions authoriz-

ing the imposition of penalties. See, e.g. Clean Air Act, 42 USC. 7413.

Marine Protection, Research and Sanctuaries Act, 33 U.S.C. 1415(a): Noise

Control Act, 42 U.S.C. 4290.

9

B. THE LEGISLATIVE HISTORY OF THE WATER ACT

SHOWS THAT THE ACT AUTHORIZES CITIZEN

SUITS SEEKING PENALTIES FOR PAST

VIOLATIONS

There is nothing in the legislative history of the 1972 Water Act

even suggesting that Congress intended its use of the present

tense in Section 505(a)(1) to have so drastic an effect as peti-

tioner contends. On the contrary, Senator Muskie, the principal!

sponsor of the Senate bill, stated during the floor debates that,

under the citizen suit provision agreed to by the Conference Com-

mittee (118 Cong. Rec. 33700 (1972)):

A citizen has the right under Section 505 to bring an

action for an appropriate remedy in the case of any person

who is alleged to be, or to have been, in violation, whether

the violation be a continuous one, or an occasional or

sporadic one. [emphasis added]

Thus, Senator Muskie clearly stated that Congress intended to

authorize citizen suits based on past violations.

The legislative history of the federal enforcement section of the

Act, Section 309(d), further supports this conclusion. Section

309(a) provides that the Administrator of EPA can take enforce-

ment actions, including a civil action to impose civil penalties

under Section 309(d), whenever he “finds” a violation to exist.

The Senate Conferees’ statement on the Conference Report

explains that, under this section (118 Cong. Rec. 33697 (1972)):

It is expected, of course, that upon receipt of information

that a violation has occurred, [the Administrator] has an

affirmative duty to take steps necessary to determine

whether a violation has occurred including such investiga-

tions as may be necessary, and to make his finding as

expeditiously as practicable. [emphasis added |

Moreover, the legislative history of the Water Act demon-

strates that the scope of enforcement and the remedies available

for citizen suits and EPA civil suits are the same. The Senate

Report states (S. Rep. No. 414, supra, p. 64):

10

It should be noted that if the Federal, State, and local

agencies fail to exercise their enforcement responsibility,

the public is provided the right to seek vigorous enforce-

ment action under the citizen suit provisions of section

505.

The Senate Report further states (id. at 80):

The standards for which enforcement would be sought

either under administrative enforcement or through citi-

zen enforcement procedures are the same. Therefore the

participation of citizens in the courts seeking enforcement

of water pollution control requirements should not result

in inconsistent policy.

Moreover, in emphasizing that enforcement actions would be

brought against past violators, Senator Muskie pointed to the

parallel nature of EPA and citizen enforcement (118 Cong. Rec.

33693 (1972)):

The Administrator's authority is not limited to those cases

in which there is a continuing violation. Any discharge,

intermittent or continuous, which the Administrator finds

violates the terms of the permit, is to be enforced. * * *

Citizen suits can be brought to enforce against both con-

tinuous and intermittent violations.

Thus, Congress intended that the various civil enforcement

mechanisms be uniform. Otherwise, if EPA and the States could

sue for civil penalties for past violations, but citizens could not,

this would significantly reduce the effectiveness of citizen

enforcement when EPA or the States fail to carry out their

responsibilities. Citizens could not effectively substitute for EPA

or the states “as private attorneys general”—the term applied to

citizen plaintiffs by this Court in Middlesex County Sewerage

Authority v. National Sea Clammers’ Ass'n, 453 U.S. 1, 16-17

(1981). For these reasons, numerous district court decisions

have similarly recognized that “the remedies obtainable in citizen

suits should be coextensive with those available in suits initiated

1]

by the federal government.” Connecticut Fund for the Environ-

ment v. The Job Plating Co., Inc., 623 F. Supp. 207, 213 (D.

Conn. 1985). Accord, SPIRG v. Georgia-Pacific Corp., 615 F.

Supp. 1419, 1425 (D.N.J. 1985); SPIRG v. Monsanto Co.,

supra, 600 F. Supp. at 1476; SPIRG v. AT&T Bell Laboratories,

supra, 617 F. Supp. at 1199.

Petitioner places primary weight on passages from Senate

Report No. 414 that emphasize the use of citizen suits to abate

ongoing violations. Pet. Br. 26. However, as the court of

appeals noted below (791 F.2d at 311), none of these passages

state that abatement of ongoing violations is the only relief avail-

able under Section 505(a). Indeed, the statute is explicit that

this is not the only relief provided since it specifically authorizes

citizens to sue for penalties.

Furthermore, the relevance of these passages to the issue before

the Court is questionable because each of them is drawn virtually

verbatim from the Senate Report on the citizen suit provision of

the Clean Air Act. Cf.S. Rep. No. 414, supra, pp. 79-81, with S.

Rep. No. 1196, 91st Cong., 2d Sess. 36-38 (1970). Since the

Clean Air Act does not authorize civil penalties in citizen suits,

Congress had no reason to discuss them, and necessarily confined

its discussion to the abatement of ongoing violations.

In authorizing such penalties under the Water Act, Congress

recognized this fundamental difference between the citizen suit

provisions in the two statutes. The House Report on the Water

Act states (H. Rep. No. 911, 92d Cong., 2d Sess. 133 (1972)):

Section 505 closely follows the concepts utilized in section

304 of the Clean Air Act. However, this legislation

authorizes the courts to impose civil penalties, as well as

injunc. ve relief.

The Senate Report likewise notes (S. Rep. No. 414, supra, p.

79):

The Committee has established a provision in the bill that

would provide citizen participation in the enforcement of

control requirements and regulations established under

this Act modeled on the provision enacted in the Clean Air

12

Amendment of 1970. * * * One modification would

allow the Courts to impose civil penalties provided as a

result of actions brought by citizens.

Thus, in the Water Act, Congress deliberately gave citizens a

second enforcement weapon, civil penalties.

In sum, the legislative history of the 1972 Water Act shows that

Congress intended, unlike in the Clean Air Act, to authorize both

citizen and government suits for civil penalties based on past

violations.

C. THE LANGUAGE AND LEGISLATIVE HISTORY OF

THE 1987 AMENDMENTS TO THE WATER ACT

SHOW THAT THE ACT AUTHORIZES CITIZEN

SUITS SEEKING PENALTIES FOR PAST

VIOLATIONS

The language and legislative history of the 1987 amendments

to the Water Act further demonstrate that Congress did not

intend to limit the reach of the Act’s judicial enforcement provi-

sions to prospective violations.

In those amendments, Congress gave EPA new authority to

impose civil penalties administratively without filing a judicial

enforcement action. Pub. L. 100-4, Section 314, 101 Stat. 46-49.

In defining this new authority, Congress authorized EPA to insti-

tute such administrative actions where a person “has violated” the

Act. 101 Stat. 46. This language contrasts with the present

tense language in the judicial enforcement sections, Sections 505

and 309, which Congress left unchanged.

The “has violated” language originated in the Senate. S. Rep.

No. 50, 99th Cong., Ist Sess. 100 (1985).* The Senate Report on

this provision states (S. Rep. No. 50, supra, p. 26):

This new authority is designed to address past, rather than

continuing, violations of the Act. Continuing violations

are more appropriately addressed by abatement orders or

3. The House bill used the words, “is in violation.” H. Rep. No. 189, 99th

Cong., Ist Sess. 89 (1985)

13

injunctive actions and, if EPA seeks both civil penalties

and injunctive relief, one judicial! action should be filed.

Thus, when Congress wanted to limit enforcement authority to

purely past violations, it chose the terms “has violated.”

Furthermore, Congress intended that citizens would, in some

circumstances, be able to bring citizen suits covering this same set

of purely past violations. This conclusion is confirmed by a later

passage in the same Senate Report which discusses the preclusive

effect of administrative civil penalty actions on citizen suits.

Under these preclusion provisions, the pendency of an EPA or

state administrative enforcement proceeding concerning a viola-

tion of the Act may, in certain specified circumstances, prevent “a

civil penalty action under * * * Section 505” as to that same

violation. 101 Stat. 47-48. The passage in the Senate Report

states that this preclusive effect (S. Rep. No. 50, supra, p. 28):

would not apply to an action for civil penalties for a viola-

tion of the same requirement of the Act that is not being

addressed administratively or for a past violation of

another pollutant parameter (even one resulting from the

same discharge which is the subject of the administrative

civil penalty proceeding). [emphasis adéed |

Thus, by expressly stating that citizens could, in some circum-

stances, seek civil penalties for past violations resulting from the

same discharge (but a different pollutant parameter) as that

involved in an administrative penalty proceeding, Congress neces-

sarily meant that citizens could seek civil penalties for past viola-

tions under Section 505.

Consequently, the language and legislative history of the 1987

amendments to the Water Act confirm that citizens can seek

penalties for past violations. ;

14

D. THE WEIGHT OF JUDICIAL AUTHORITY SUP-

PORTS RESPONDENTS’ POSITION THAT THE ACT

AUTHORIZES CITIZEN SUITS SEEKING PENAL-

TIES FOR PAST VIOLATIONS

The lower courts have repeatedly held that citizens may sue for

past violations. Chesapeake Bay Foundation v. Gwaltney of

Smithfield, supra, 791 F.2d at 313; Connecticut Fund for the

Environment v. The Job Plating Co., supra, 623 F. Supp. at 213-

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

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

Supra, 636 F. Supp. at 529-530; Sierra Club v. Simkins Indus-

tries, 617 F. Supp. 1120, 1126-1127, 1131-1132 (D. Md. 1985):

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

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

Cases (BNA) 1050, 1053-1055 (D. Mass. 1984); Sierra Club v.

C.G. Manufacturing, Inc., 638 F. Supp. 492, 494 (D. Mass.

1985); State of Alabama ex rel. Graddick v. Veterans Adminis-

tration, 648 F. Supp. 1208, 1211 (M.D. Ala. 1986); Locust Lane

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

Pa. 1986); Atlantic States Legal Foundation v. Al Tech Spe-

cialty Steel Corp., 635 F. Supp 284, 287 (N.D.N.Y. 1984):

Friends of the Earth v. Archer Daniels Midland Co., 24 Env’t

Rep. Cases (BNA) 1993, 1995-1996 (N.D.N.Y. 1986); SPIRG

v. AT&T Bell Laboratories, supra, 617 F. Supp. at 1194-1199;

SPIRG v. Georgia-Pacific Corp., supra, 615 F. Supp. at 1425-

1426; SPIRG v. Monsanto Co., 600 F. Supp. 1479, 1486 (1985):

SPIRG v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074,

1083-1084 (D.N.J. 1986); SPIRG v. Jersey Central Power &

Light Co., 642 F. Supp. 103, 107 (D.N.J. 1986); SPIRG v. Amer-

ican Cyanamid Co., 23 Env’t Rep. Cases (BNA) 2044, 2049

(D.N.J. 1985); SPIRG v. National Starch and Chemical Corp..,

23 Env’t Rep. Cases (BNA) 1982, 1984 (D.N.J. 1985): SPIRG

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

SPIRG v. Anchor Thread Co., 22 Env’t Rep. Cases (BNA) 1150,

1154 (D.N.J. 1984); SPIRG v. Ragen Precision Industries,

15

D.N.J., No. 83-1604, December 19, 1983, Transcript of Proceed-

ings, p. 7.

In contrast, there are only a handful of decisions supporting

petitioner’s interpretation of the Act. Hamker v. Diamond

Shamrock Chemical Co., 756 F.2d 392, 395 (Sth Cir. 1985);

Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d 1089,

1093 (ist Cir. 1986), petition for certiorari filed, No. 86-1562

(March 17, 1987); Sierra Club v. Copolymer Rubber & Chemi-

cal Corp., 621 F. Supp. 1013, 1015 (M.D. La. 1985); Sierra

Club v. Kerr-McGee Corp., 23 Env’t Rep. Cases (BNA) 1685,

1690 (W.D. La. 1985).

E. THE EVIDENTIARY PROBLEMS WHICH WOULD

RESULT UNDER PETITIONER’S INTERPRETATION

SHOW THAT IT IS CONTRARY TO THE INTENT OF

THE ACT

Petitioner’s interpretation of Section 505 would make it

extremely difficult for citizens to exercise their rights under that

Section.

Section 308 of the Act gives EPA authority to require record-

keeping, monitoring, and reporting of discharges of pollutants.

33 U.S.C. 1318. Under EPA regulations, a permittee under

EPA’s Naticnal Pollutant Discharge Elimination System

(NPDES), as petitioner is, must monitor its own discharges

according to a schedule established in its permit and report them

on a regular basis on Discharge Monitoring Reports (DMRs).

40 C.F.R. 122.41(1)(4). These DMRs constitute the basis for

determining whether or not the permit holder is in compliance

with its permit limitations.

The timeliness of the data contained in DMRs depends on two

variables, the frequency of monitoring and the frequency of

reporting. In the present case, petitioner monitored its discharge

three times a week. Pl. SJ Motion, Ex. A, pp. B, Q. However,

monitoring may be performed on a less frequent basis. EPA regu-

lations only require monitoring with a “frequency sufficient to

yield data which are representative of the monitored activity

16

***” 40C.F.R. 122.48(b). See also 122.41(j) (1). It is not

unusual for permittees to monitor only once a month.‘

As to reporting frequency, petitioner submitted DMRs on a

monthly basis. However, DMRs may be submitted less fre-

quently. See, e.g., SPIRG v. Hercules, Inc., supra, 23 Env’t Rep.

Cases (BNA) at 2090 (quarterly reporting). EPA regulations

require NPDES permittees (40 C.F.R. 122.44(i)(2)):

to report monitoring results with a frequency depending

on the nature and effect of the discharge, but in no case

less than once a year.

Infrequent monitoring and reporting causes two types of

problems with the availability of effluent data. First, there may

be a considerable period of time between the date the discharge is

monitored and the date that the DMR jis mailed to EPA and

therefore becomes available to the public. For example, in

SPIRG v. Hercules, Inc., supra, 23 Env’t Rep. Cases (BNA) at

2090, the defendant monitored once a month, prepared a DMR

once every three months, and was required to mail that DMR to

EPA“no later than the 28th day of the month following the com-

pleted reporting period”. Thus, in that case, there was a delay of

about 4 months between the first monitoring event of the quarter

and the date that event became known to the public. Conse-

quently, it is often impossible for citizens to determine a permit-

tee’s current compliance status.

Second, there may be considerable periods of time between

successive monitoring days, as well as between successive DMRs.

Monitoring may occur on only three days over three months, or

even one day over a six-month period. In addition, DMRs may

be filed every three months, every six months, or even every twelve

months. Thus, neither monitoring nor reporting is “continuous.”

Those activities are regular, but infrequent. As a result, the

4. See. e.g. SPIRG v. American Cyanamid Co., supra, 23 Env't Rep. Cases

_(BNA) at 2050; SP/RG v. AT&T Bell Laboratories, supra, 617 F. Supp. at

1204-1205; .SPIRG v. Hercules Corp., 23 Env't Rep. Cases (BNA) 2081. 2090-

2091 (D.N_J. 1986): SPIRG v. National Starch and Chemical Corp., supra, 23

Env't Rep. Cases (BNA) at 1985.

17

continuing or episodic nature of violations, or of compliance, is

not necessarily apparent from DMRs.

The present case illustrates the difficulties inherent in peti-

tioner’s interpretation of Section 505(a)(1). Respondents gave

notice of their intent to sue on February 29, 1984. Petitioner's

violations continued until May 15, 1984, and those May viola-

tions were reported ina DMR which was completed by petitioner

on June 8, 1984, and presumably filed with EPA several days

later. Pet. Br. 19,n. 19. Respondents filed suit almost immedi-

ately thereafter on June 15, 1984. Petitioner’s compliance with

its permit in June 1984 was reported in a DMR which was not

filed until sometime in July 1984, after respondents filed this

action. Consequently, respondents could not possibly have deter-

mined petitioner’s post-May 15 compliance status before their

complaint was filed.

___ Furthermore, respondents could not have determined at the

time the complaint was filed whether petitioner was continuing to

violate its permit. Petitioner admits that, to avoid the absurd

result that a company can be sued only if it is violating its permit

on the day the complaint is filed, the statute must be read to

include the “chronic episodic violator” who has “ongoing inter-

mittent violations.” Pet. Br. 16-17, 29, n. 30. Under this stan-

dard, even if respondents could somehow have known on June 15

that petitioner had not violated its permit for the prior 30 days, a

single month’s compliance would not show whether petitioner was

a “chronic episodic violator.” At that time, there was no assur-

ance that violations would not be reported in subsequent months.

To eliminate the possibility that petitioner's violations were

“ongoing intermittent” ones, respondents would have had to have

been clairvoyant and predicted the company’s future discharges

months in advance.

Furthermore, we su ‘mit that the facts in petitioner's case are

relatively easy to analyze, since it monitored its discharge three

times a week and reported those results on a monthly basis. As we

have noted above, some dischargers monitor only monthly and

report only quarterly. How does a citizen identify a “chronic

episodic violator” when reporting data is this infrequent? How

long should a citizen wait to determine whether past intermittent

violations have “completely abated” or are “ongoing”? One

quarter? One year? And, even if the citizen waits one year, how

does he still knc w whether the violations have ended after the last

reporting data which is publicly available?

The court decisions which have required a continuing violation

similarly demonstrate the difficulty of defining and implementing

that concept. For example, petitioner cites Sierra Club v. Kerr-

McGee Corp., supra, as a case that correctly applied its interpre-

tation of the Act. Pet. Br. 17. In Kerr-McGee, plaintiffs filed suit

on June 29, 1984 (23 Env't Rep. Cases (BNA) at 1689), and

submitted evidence of permit violations from December 1980

through July 1984 (id. at 1686). The court held that violations

prior to January 3, 1984, were not continuing or actionable, but

that those between January 3 and July 24, 1984, were continuing

and actionable, even though the latter set of violations were inter-

mittent and did not include a violation on the day the suit was

filed. /d at 1690 and n. 3. Indeed, in the latter set, the permit

violations closest to the June 29 date of the complaint were on

May 22 and July 24. /bid. If two violations in three months

mean that those violations “continue unabated,” as petitioner

argues (Pet. Br. 17), it is difficult to give any clear meaning to

these terms.

Furthermore, it is impossible to see “a profound difference”

(Pet. Br. 17) between the facts in petitioner’s case and the facts

in Kerr-McGee. In 1984, petitioner reported 10 violations in

January, 6 in February, | in March, 4 in April, 2 in May, and

none in June or July. 611 F. Supp. at 1566. The complaint was

filed in June. In that same year, Kerr-McGee reported violations

on 6 days in January, none in February, | day in March 2 days in

April, 2 days in May, none in June and | day in July. 23 Env't

Rep. Cases (BNA) at 1690, n. 3. Again, the complaint was filed

in June. Thus, during the same seven month period, each com-

pany reported violations in five months, and plaintiff's complaint

in each case was filed in the same month. Yet, according to

19

petitioner, in one case jurisdiction should be sustained and in the

other it should be rejected. Pet. Br. 17-18.

We submit that petitioner's interpretation is not only unreason-

able and unworkable, but directly contrary to the intent of Con-

gress. Congress recognized that the successful operation of the

Act’s citizen suit provision depends on the timely disclosure of a

polluter’s discharge information. The Senate Report states (S.

Rep. No. 414, supra, pp. 62, 81):

A necessary adjunct to the establishment of effective

water pollution requirements and the enforcement of such

requirements is authority to require information, data,

and reports, as well as to establish monitoring

requirements. -

*_* *

The information and other disclosure provisions required

throughout this bill are important to the operation of this

provision. The Administrator would have a special duty

to make meaningful information on discharging sources

available to the public on a timely basis.

Congress also recognized that enforcement actions based on

such information should be simple and expeditious. Thus, the

Senate Repert states (id. at 64, 65, 80, 81):

[T]he bill reported from the Committee establishes and

makes precise new requirements imposed on persons and

subject to enforcement. One purpose of these require-

ments is to avoid the necessity of lengthy fact finding.

investigations, and negotiations at the time of enforce-

ment. Enforcement of violations of requirements of this

Act should be based on a minimum of discretionary deci-

sionmaking or delay.

> * *

The Committee believes that if the timetables established

throughout the Act are to be met, the threat of sanctions

must be-real, and enforcement provisions must be swift

and direct.

* * *

An alleged violation of an effluent control limitation or

standard would not require reanalysis of technological

20

{or} other considerations at the enforcement stage.

These matters will have been settled in the administrative

procedure leading to the provisions. Therefore, an objec-

tive evidentiary standard will have to be met by any citi-

zen who brings an action under this section.

* +t

The standards for which enforcement would be sought

under either administrative enforcement or through citi-

zen enforcement procedures are the same. * * * Conse-

quently, the factual basis for enforcement of requirements

would be available at the time enforcement is sought and

the issue before the courts would be a factual one of

whether there had been compliance.

*>* *

The citizen suit provision is consistent with principles

underlying the Federal Water Pollution Control Act, that

is the development of clear and identifiable requirements.

Such requirements should provide manageable and pre-

cise benchmarks for enforcement. [emphases added ]

Petitioner's interpretation is directly inconsistent with this leg-

islative intent. It would engage the litigants in discovery battles

over whether a discharge is continuing and would engage the

courts in a search for standards to apply in resolving the continu-

ing discharge issue. Such standards would not be “manageable”

or “precise,” would require “lengthy faci finding, [and] investiga-

tions,” and would prevent the enforcement provisions from being

based on “a minimum of discretionary decisionmaking or delay.”

Aside from petitioner's proposed standard, the other standards

Suggested by the court decisions relied on by petitioner are

equally inconsistent with Congressiona! intent. The Fifth Cir-

cuit’s test in Hamker v. Diamond Shamrock Chemical Co..

supra, 756 F.2d at 395, i.e., whether a violation occurs on the date

the complaint is filed, is hopelessly unrealistic given the practical-

ities of how infrequently and how slowly permittees monitor and

report the pollutants in their discharges. Citizen plaintiffs could

not know in advance the day on which monitoring would occur.

It would be an unusual coincidence if monitoring even happened

to occur on the day the complaint was filed.

21

In Pawtuxet Cove Marina v. Ciba-Geigy Corp., supra, 807

F.2d at 1093, the First Circuit attempted to draw a line between

“conduct indicative of continuing or renewed violations justifying

an injunction, as distinguished from matters over and apparently

done with, that would not warrant one.” In drawing this line, the

court directed the district courts to “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 iis assurances against future violations.” /d. at 1094. This test

is quintessentially discretionary and imprecise. Moreover, it

confuses the traditional standards for an injunction based on the

likelihood of recurring violations with the totally different ques-

tion whether the defendant should be penalized because violations

have already occurred. Finally, by examining the defendant's

degree of scienter and “sincerity,” that test is directly inconsistent

with the principle that polluters are strictly liable for permit

violations, regardiess of their good faith. United States v. Earth

Sciences, Inc., supra, 599 F.2d at 374.

F. CIVIL PENALTIES FOR PAST VIOLATIONS ARE

ESSENTIAL TO CARRY OUT THE STATUTORY PUR-

POSE OF DETERRING VIOLATIONS BY PETI-

TIONER AND OTHER POLLUTERS

Petitioner argues that the primary goal of the Act is to

encourage permit compliance and that, once compliance 1s

achieved, no further citizen action is necessary. Pet. Br. 25-26.

This argument seriously misapprehends the purpose of the

Statute.

The whole purpose of the civil penalty provision is to induce

timely and voluntary compliance. Penalties serve to deter viola-

tions both by the violator (“specific deterrence”) and by other

polluters (“general deterrence”). EPA has emphasized these

points in its policy statement on enforcement of civil penalties

(U.S. Environmental Protection Agency, Policy on Civil Penal-

ties, EPA General Enforcement Policy GM-21 (Feb. 16, 1984),

22

pp. 3-4, reprinted in Env't Rep. (BNA) (Fed. Laws) 41:2991-

3003):

The first goal of penalty assessment is to deter people from

violating the law. Specifically, the penalty should per-

suade the violator to take precautions against falling into

noncompliance again (specific deterrence).

If a penalty is to achieve deterrence, both the violator and

the general public must be convinced that the penalty

places the violator in a worse position than those who have

complied in a timely fashion. * * * For these reasons. it is

Agency policy that penalties generally should, at a mini-

mum, remove any significant economic benefits resulting

from failure to comply with the law.

*- +s

The removal of the economic benefit of noncompliance

only places the violator in the same position as he would

have been if compliance had been achieved on time. Both

deterrence and fundamental fairness require that the pen-

alty include an additional amount to ensure that the viola-

tor is economically worse off than if it had obeyed the law.

This additional amount should reflect the seriousness of

the violation [the “gravity component”]. In doing so, the

penalty will be perceived as fair. In addition the penalty’s

size will tend to deter other potential violators.

In some classes of cases, the normal gravity calculation

may be insufficient to effect general deterrence. This

could happen if, for example, there was extensive noncom-

pliance with certain regulatory programs in specific areas

of the United States. This would demonstrate that the

normal penalty assessments had not been achieving gen-

eral deterrence. In such cases, tie case development team

should consider increasing the gravity component suffi-

cient to achieve general deterrence.

EPA has emphasized in its policy statements that achievement

of these goals of specific and general deterrence requires the

imposition of civil penalties even if the violator has come into

compliance (U.S. Environmental Protection Agency, Agency-

wide Compliance and Enforcement Strategy and Strategy

23

Framework for EPA Compliance Programs (May 1984), p. 26,

quoted in SPIRG v. AT&T Bell Laboratories, supra, 6\7 F.

Supp. at 1201, n.4):

Civil penalty actions are often necessary even if the under-

lying violation has been corrected, to deter future viola-

tions, and to restore economic equity to other regulated

parties which have invested the resources needed to be in

compliance all along.

Thus, EPA has clearly stated that penalties for past violations,

even when the violations have ceased, are essential to carry out

the purpose of the statute. EPA's interpretation of the Act “Is

entitled to considerable deference” by this Court. Chemical Man-

ufacturers Ass'nv. Natural Resources Defense Council, 470 US.

116, 125 (1985).

Furthermore, Congress expressly mandated that all permittees

comply with their permits by July 1, 1977. 33 USC.

1311(b)(1). Petitioner was out of compliance with its permit

until May 1984. While petitioner claims that it made substantial

investments to achieve compliance by this date (Pet. Br. 4-6), it

delayed that investment for years and therefore gained a large

economic benefit. A failure to impose civil penalties in such cases

would encourage other companies to delay their compliance with

the Water Act.

Indeed, petitioner's argument that penalties are not available

unless the permittce is currently “in violation” would encourage

permittees to do nothing until they were notified that a suit was

imminent. If the company then came into compliance before suit

was brought, it would totally escape any penalty for its violation

of the statute. Such a result would seriously undermine the

deterrent purpose of the statute. See, e.g., Sierra Club v. Hanna

Furnace Corp., supra, 636 F. Supp. at 529.

The fact that petitioner is no longer violating its permit does

not mean that civil penalties will have no deterrent effect on

petitioner in the future. Petitioner's NPDES permit is still in full

force and effect, and petitioner is still discharging into the Pagan

River. Pet. Br. 21. Petitioner may still violate its permit. It

24

therefore serves the deterrent purpose of the Act for petitioner to

know that it cannot escape liability for any future permit viola-

tions by again halting the violations before a complaint is filed in

federal court. SPIRGv. AT&T Bell Laboratories, supra, 617 F.

Supp. at 1200.

Furthermore, penalizing petitioner for its past noncompliance

in this case will deter other polluters. Such polluters will have

greater incentive to comply quickly with their permits if they

know they can be sued for past violations, even if they cease

discharging or come into compliance before they are sued. On

the other hand, if, as petitioner proposes, polluters can retain an

economic advantage from years of noncompliance and escape any

consequences for its permit violations, there would be a substan-

tial disincentive to voluntary compliance.

G. PERMITTING CITIZEN SUITS BASED ON PAST

VIOLATIONS WILL NOT HAVE THE ADVERSE

EFFECTS ALLEGED BY PETITIONER

Petitioner argues that permitting citizens to sue for past viola-

tions would have serious adverse effects, i.e., burdening the fed-

eral courts with a flood of citizen suits, providing an incentive for

citizens to obtain settlements benefitting environmental organiza-

tions rather than the U.S. Treasury, interfering with governmen-

tal enforcement activities, and raising serious constitutional

issues. Pet. Br. 30-37. These arguments are specious at worst

and diversionary at best.

On the one hand, these arguments prove too much. All of

them might support an argument that citizen plaintiffs should not

be allowed to sue for penalties at all. However, this is an argu-

ment which Congress has obviously not accepted since it explic-

itly provided that citizens could sue for the imposition of

penalties. On the other hand, these arguments prove too little.

Not one of them supports petitioner's position that citizen suits

for penalties relating to continuing violations are authorized. but

identical suits based on past violations are not.

> - abated

25

Petitioner claims that citizen suits under the Water Act will

burden the federal courts. Pet. Br. 33. Petitioner speculates

that, since there are 65,000 outstanding permits, every one of

these is potentially the subject of a citizen suit, because EPA

writes every permit with the statistical expectation that 100 per-

cent compliance is impossible. /d. at 34.°

The short answer to petitioner’s in terrorem argument is that

we know of no suit brought by a citizen plaintiff for one or even a

few routine violations of an NPDES permit, and petitioner cites

none. The reason is undoubtedly because such a suit is extremely

unlikely to succeed. First, in cases where violations are random

and infrequent, there is reason to expect the permittee to invoke

the “upset” defense in EPA’s regulations, which, when incorpo-

rated in the permit, provide an affirmative defense for exceptional

incidents in which there is temporary and unintentional noncom-

pliance with technology-based limits because of factors beyond

the reasonable control of the permittee. 40 C.F.R. 122.41(n).

Second, when few violations are involved, the courts are not likely

to impose significant penalties, since they must consider the his-

tory and seriousness of the violations in setting a penalty. 33

U.S.C. 1319(d), as amended, 101 Stat. 45.

Petitioner also argues that allowing citizens to sue for past

violations will encourage citizens to use the citizen suit provision

5. EPA’s decision to write permits in this way is perfectly reasonable. If

EPA drafted a permit to encompass all the potential statistical variability in a

company’s discharge, it would have to set the permit limits so high as to be

meaningless as a regulatory control device. “One of the goals of the NPDES

permit program is to insure that pollution-control facilities are operated as

efficiently and carefully as possible.” U.S. Steel Corp. v. Train, 556 F.2d 822,

$42 (7th Cir. 1977). The limits therefore should not be set so high as to “build

in a factor for human or mechanical lapses.” /bid. Accord, CPC International

v. Train, 540 F.2d 1329, 1337-1338 (8th Cir. 1976); American Petroleum

Institute v. EPA, 540 F.2d 1023, 1036 (10th Cir. 1976)(“As technology for

control of pollutant discharges improves, the variations should lessen”).

Despite its theoretical statistical expectation that 100% compliance may be

impossible, EPA actual regulatory expectation is that 100% compliance ts

achievable by all permittees. Thus, EPA’s regulations provide that permitices

must comply with their permits at all times and that any permit violation is a

violation of the Water Act. 40 C.F.R. 122.41(a).

26

to extract environmental contributions from defendants in lieu of

the payment of civil penalties to the U.S. Treasury. Pet. Br. 30-

32. However, such environmental contributions are neither ille-

gal nor improper. They were first approved as a remedial option

in EPA’s 1980 civil penalty policy.* In its 1984 civil penalty

policy, EPA stated that “the Agency has accepted various envi-

ronmentally beneficial expenditures in settlement of a case and

chosen not to pursue more severe penalties.”” The Justice

Department has followed this practice in its own enforcement

actions under the Act.* Most recently, environmental contribu-

tions were expressly endorsed in the Conference Report on the

Senate bill which became the 1987 amendments to the Water Act

(H. Rep. No. 1004, 99th Cong., 2d Sess. 139 (1986) ):

In certain instances settlements of fines and penalties lev-

ied due to NPDES permit and other violations have been

used to fund research, development and other related

projects which further the goals of the Act. In these cases.

the funds collected in connection with these violations

were used to investigate pollution problems other than

those leading to the violation. Setilements of this type

preserve the punitive nature of enforcement actions while

putting the funds collected to use on behalf of environmen-

tal protection. Although this practice has been used on a

selective basis, the conferees encourage this procedure

where appropriate. {emphasis added]

6. EPA Civil Penalty Policy For Major Source Violators of Clean Air Act

and Clean Water Act (July 8, 1980), Env't Rep. (BNA) (Fed. Laws) 41:1 101.

1106.

7. EPA Civil Penalty Policy (Feb. 16, 1984), reprinted in Env't Rep.

(BNA) (Fed. Laws) 41:2991, 3002. In its 1986 civil penalty policy, EPA again

authorized such environmental contributions, but stated that “[t}he govern-

ment should continue to consider mitigation projects as the exception rather

than the rule.” U.S. Environmental Protection Agency, Clean Water Act,

Penalty Policy for Civil Settlement Negotiations, February 11, 1986.

8. See, ¢.g., United States v. Amoco Oil Co., Civil No. 80 0801 (W.D. Mo.

1984) (consent decree requiring $350,000 civil penalty to the United States and

$150,000 contribution “to an organization or organizations operating in the

State of Missouri designated by defendant for use on any project relating to

hazardous waste”), discussed in 1S Env't Rep. (BNA) (Current Develop-

ments) 686 (Aug. 31, 1984)

27

Thus, both Congress and the executive branch have sanctioned

environmental contributions in appropriate cases.’

Petitioner further argues that permitting citizens to sue for past

violations interferes with the enforcement authority of EPA and

the States under the Act. Pet. Br. 35-36. However, the United

States has strongly taken the position that the citizen suit provi-

sion assists the enforcement authority of the executive branch.

Thus, in a amicus brief filed in a citizen suit under the Act, the

United States stated:"°

The United States considers the Section 505 “citizen suit”

provisions a valuable adjunct to federal enforcement of the

Clean Water Act. The provisions, responsibly invoked,

provide a useful supplement to federal and state enforce-

ment resources and a strong deterrent to future violations.

Similarly, as we have noted above (p. 3), the Senate Report on

the 1987 amendments states that citizen suits are operating “as

Congress intended—to both spur and [as a] supplement to gov-

ernment enforcement actions.” S. Rep. No. 50, supra, p. 28. In

short, petitioner's argument has already been rejected by both

Congress and the executive branch.

Finally, petitioner and several supporting amici suggest that

the lower court’s interpretation of Section 505 would raise consti-

tutional problems. Pet. Br. 37,n.48. They argue that penalties

paid to the government for past violations cannot redress any

injury to plaintiffs and that suits to recover such penalties there-

fore contravene the standing requirements of Article III. /bid.

They also argue that allowing citizens to seek such penalties

9. To the extent that environmental contributions might be misused as a

remedial option, there are adequate safeguards in the statute. First, all pro-

posed consent decrees must be submitted to the Justice Department and EPA for

review before they can be entered by a court. 33 U.S.C. 1365(c)(3), as

amended. 101 Stat. 75. Second, the United States is not bound by citizen suit

settlements and could seek the maximum statutory penalty for the same viola-

tions. 133 Cong. Rec. S 737 (daily ed., Jan 14, 1987) (remarks of Sen

Chafee).

10. Brief of the United States as Amicus Curiae in Support of the Constitu-

tionality of Section S05 of the Clean Water Act, pp. |-2. filed in SP/RG \v

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

28

violates the separation of powers doctrine by vesting enforcement

authority in citizens unaccountable to the electorate rather than

in the executive branch. /bid.

Both of these arguments have been squarely addressed and

rejected by the lower courts. As to standing, the court in SP/RG

v. AT&T Bell Laboratories, supra, 617 F. Supp. at 1200-1202,

held that plaintiffs’ members will benefit personally from imposi-

tion of civil penalties for purely past violations because the defen-

dant would be specifically deterred from violating its permit in the

future and other dischargers into the same waterway would be

generally deterred from violating their permits in the future as

well.

As to separation of powers, two district courts have found no

constitutional infirmity with Section 505 on this ground. SP/RG

v. Monsanto Co., supra, 600 F. Supp. at 1478-1479; Chesapeake

Bay Foundation v. Bethlehem Steel Corp., 652 F. Supp. 620 (D.

Md. 1987). The cases cited by the amici on this issue do not

support their argument. In each of those cases, Congress

attempted to deny authority to other branches of the federal

government to exercise their constitutionally-allocated functions,

and to grant such authority to persons not constitutionally per-

mitted to exercise it."

Citizen suits have neither of these features. First, they do not

deny or limit the Executive’s power to enforce the law. On the

contrary, that power is specifically preserved by the numerous

government oversight mechan..-s in Section 505—advance noti-

fication of citizen suits, receipt of complaints, review of consent

11. Thus, in Buckley v. Valeo, 424 U.S. | (1976), and Bowsher v. Synar,

106 S. Ct. 3181 (1986), the Court held that Congress had unconstitutionally

retained for itself the power to appoint (or remove) those charged with enforc-

ing the laws it passed. In Buckley, Congress vested enforcement authority in a

commission composed of eight members, four of whom were appointed by

Congress. In Bowsher, Congress delegated to the Comptroller General, an

official dismissable only by Congress, the power to designate mandatory cuts in

the federal budget. In Northern Pipeline Construction Co. v. Marathon Pipe

Line Co., 458 U.S. 50 (1982), the Court held that Congress had unconstitution-

ally circumvented the Judicial Branch by assigning all bankruptcy authority to a

non-Article Hl court. Thus, in all three of these cases, governmental power was

shifted from its rightful possessor to a person not entitled to have it.

29

decrees, preemption of such suits by prior government suits, and

intervention as of right. 33 U.S.C. 1365S.

In United States ex rel. Marcus v. Hess, 317 U.S. 537 (1941),

this Court upheld the constitutionality of a qui tam statute which

provided citizens with far broader prosecutorial discretion than

does the Water Act. The False Claims Act, as then in force,

entitled the gui tam plaintiff to prosecute frauds committed

against the federal government and retain one-half of the penalty

collected. Act of March 2, 1863, 12 Stat. 696, 698, 31 U.S.C.

231-234 (1940)."* That statute did not provide for any of the

government oversight mechanisms in the Water Act. It therefore

follows a fortiori that a statute such as the Water Act, which

grants much more extensive protection to executive branch

enforcement interests than do gui tam statutes, is constitutional.

Second, the citizen suit provision does not grant enforcement

authority to a person not constitutionally authorized to exercise

it. This Court recognized in Davis v. Passman, 442 U.S. 228, 241

(1979), that:

Statutory rights and obligations are established by Con-

gress, and it is entirely appropriate for Congress, in creat-

ing rights and obligations, to determine in addition who

-may enforce them and in what manner.

See also Tigner v. Texas, 310 U.S. 141, 148 (1940). It is there-

fore constitutionally permissible for Congress to create a cause of

action for private citizens to remedy and prevent pollution of this

nation’s waterways.

The fact that citizens can recover civil penalties in such actions

does not change this conclusion. Congress has frequently autho-

rized private citizens to pursue actions for civil penalties. See,

12. Qui tam statutes empower private citizens to sue for penalties owed to

the government as a result of another's unlawful conduct. As a reward for

assisting in the enforcement of the law, the gui tam plaintiff is entitled to a share

of the penalty. See Note, The History and Development of Qui Tam, 1972

Wash. U. L.Q. 81. Qui tam actions “have been in existence for hundreds of

years in England and in this country ever since the foundation of our Govern-

ment.” Marviny. Trout, 199 U.S. 212, 225 (1905). See also Adams qui tam

vy. Woods, 6 U.S. (2 Cranch) 336 (1804).

30

e.g., False Claims Act, 31 U.S.C. 3730(b); Patent Act of 1952,

35 U.S.C. 292. In addition, in seeking such penalties, citizens

are vindicating their own rights, not exercising governmental

enforcement power. Under Section 505, a person “having an

interest which is or may be adversely affected” (33 U.S.C.

1365(g)) by a defendant’s unlawful pollution sues “on his own

behalf” (33 U.S.C. 1365(a)) to remedy and prevent that pollu-

tion. It is therefore constitutional for Congress to authorize the

judicial assessment of civil penalties as part of a package of

remedies designed to afford complete relief and maximum deter-

rent effect against polluters.

CONCLUSION

For these reasons, the judgment below should be affirmed.

Respectfully submitted,

Bruce J. TERRIS

JAMES M. HECKER

TERRIS, EDGECOMBE,

Hecker & WAYNE

1121 12th Street, N.W.

Washington, D.C. 20005

(202) 682-2100

Attorneys for Amici Curiae

May, 1987