# Amicus Curiae Brief — Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1079%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 484 U.S. 49 ## Text RFILED MAY 27 6T JOSEPH F. SPANIOL, JR, No. 86-473 CLERK In The Supreme Court of the United States October Term, 1986 ” = vv GWALTNEY OF SMITHFIELD, LTD. Petitioner, CHESAPEAKE BAY FOUNDATION, INC. and NATURAL RESOURCES DEFENSE COUNCIL, Respondents. ra’ . On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit ray Amici Curiae Brief of States of Alabama, California, Connecticut, Hawaii, Maine, Michigan, Missouri, New Mexico, South Carolina, Tennessee, Vermont, Virginia and Washington in Support of Respondents r= = Vv STATE OF CALIFORNIA *RODERICK E. WALSTON JOHN K VAN DE KAMP ALLENE C. ZANGER Attorney General of the Deputy Attorneys General State of California 6000 State Building R. H. CONNETT San Francisco, CA 94102 Assistant Attorney General Telephone: (415) 557-3920 *(Counsel of Record) (Counsel continued on inside cover) COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 or call collect (402) 342-2831 STATE OF ALABAMA DON SIEGELMAN Attorney General of the State of Alabama Alabama State House 11 South Union Street Montgomery, AL 36130 STATE OF CONNECTICUT JOSEPH |. LIEBERMAN Attorney General of the State of Connecticut Robert E. Walsh Assistant Attorney General 30 Trinity Street Hartford, CT 06106 STATE OF HAWAII WARREN PRICE, II! Attorney General of Hawaii State Capitol Bidg. Honolulu, HI 96813 STATE OF MAINE JAMES E. TIERNEY Attorney General of Maine PHILIP AHRENS Deputy Attorney General Office of the Attorney General State House Station 6 Augusta, ME 04333 STATE OF MICHIGAN FRANK Jj. KELLEY Attorney General LOUIS |. CARUSO Solicitor General law Building Lansing, MI 48913 STATE OF MISSOURI WILLIAM L. WEBSTER Attorney General State of Missouri P. ©. Box 899 lefferson City, MO 65902 STATE OF NEW MEXICO New Mexico Health & Env. Dept. Environmental Improvement Div. Louis W. Rose, Special Assistant Attorney General Health & Environment Dept. P. O. Box 968 Santa Fe, NM 87504-0968 STATE OF SOUTH CAROLINA T. TRAVIS MEDLOCK Attorney General of South Carolina P. O. Box 11549 Columbia, SC 29211 STATE OF TENNESSEE W. |. MICHAEL CODY Attormey General and Reporter State of Tennessee 450 James Robertson Parkway Nashville, TN 37219-5025 STATE OF VERMONT JEFFREY L. AMESTOY Attorney General of Vermont Office of Attorney General 109 State Street Montpelier, VT 05601 STATE OF VIRGINIA MARY SUE TERRY Attorney General of Virginia 101 North Eighth Street Richmond, VA 23219 STATE OF WASHINGTON KENNETH EIKENBERRY Attorney General of the State of Washington Temple of justice Olympia, WA 98504-0521 i TOPICAL INDEX Page STATEMENT OF INTEREST 1 SUMMARY OF ARGUMENT 2 ARGUMENT 3 I CITIZENS SUING UNDER THE CLEAN WA- II [il IV EE EEE TER ACT MAY SEEK CIVIL PENALTIES FOR PAST VIOLATIONS - A. Under Clean Water Act Section 309(d) Citi- zens Can Seek Civil Penalties For Past Vio- Ee a B. The Legislative History of the Clean Water Act Supports Imposition of Penalties for Past Violations Under Section 505 _. scediiiiins C. The ‘‘Alleged To Be In Violation’’ Lan- guage In Section 505(a) Does Not Limit Pen- alties to Ongoing Violations 0. D. Petitioner’s View of Citizen Suit Jurisdic- tion Conflicts With Its Own Literal Reading a PETITIONER’S POLICY ARGUMENTS FOR LIMITING CITIZEN SUITS DO NOT WAR- RANT A NARROW CONSTRECTION OF CC CIVIL PENALTIES ARE AN IMPORTANT MEANS OF COMPELLING COMPLIANCE WITH THE CLEAN WATER ACT 0 THE WEIGHT OF JUDICIAL AUTHORITY SUPPORTS ALLOWING CITIZEN SUITS SEEKING PENALTIES FOR PAST VIOLA- TIONS . — 13 18 21 23 25 il TABLE OF CASES Alabama ex rel. Graddick v. Veterans Administra- tion, 648 F.Supp. 1208, 1211 (M.D. Ala. 1986) 0. 23 Atlantic States Legal Foundation v. Al Tech Specialty Steel Corp., 635 F. “— 284, 286-87 (N.D.N.Y. 1984) EE Sa NER 24 Baker v. Carr, 369 U.S. 186, 217 (1962) 20 Chesapeake Bay Foundation v. Gwaltney of Smith- field, 791 F.2d 304, 313 (4th Cir. 1986) 000000. 13, 17, 23 Colegrove v. Green, 328 U.S. 549, 556 (1946) 200000 20 Connecticut Fund for the Environment v. the Job Plating Co., Inc., 623 F.Supp. 207, : van 214 (D. Conn. 1985) cietasaueiniennia ..6, 23 E. I. du Pont de Nemours & Co. v. Train, 430 U.S. FS ssaceiemesieniieinaisiaddaiitadeninlaianie 5 Fishel v. Westinghouse Electric Corp., 617 F.Supp. OG 23 Friends of tue Earth v. Archer Daniels Midland Co., 24 Env’t Rep. Cas. (BNA) 1993, 1995-1996 TL ANITELERay UTM schicninndesieeinetiiniideicidheijaisielaaianiiubasaianeatiialiiaaltees 23 Hamker v. Diamond Shamrock Chemical Corp., 756 F.2d 392, 395 (5th Cir. 1985) 20000. 13, 15, 16, 17, 24 Illinois v. Outboard Marine Corp., 617 F.2d 623, 631 (7th Cir. 1980), Vacated and remanded on SEI ID cececcesnccsicetesneenseeaiesitiemniiineniiaiiaitinninaialsitaee 21 Locust Lane v. Swatara Township Authority, 636 F.Supp. 534, 539 (M.D. Pa. 1986) 2 cccccncccneenennne 2d Massachusetts v. United States Veterans Adminis- tration, 541 F.2d 119 (1st Cir. 1976) ou... 21 Pawtuxet Cove Marina Ine. v. Ciba Geigy Corp., 807 F.2d 1089, 1092-1094 (1st Cir. 1986 ).......... 13, 14, 15, 16, 17, 24 iii TABLE OF CASES—Continued Page Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 854 (N.D.N.Y. 1984) 24 Sierra Club v. C. G. Manufacturing, Inc., 638 F. Supp. 492, 494 (D. Mass. 1985) ... 23 Sierra Club v. Copolymer Rubber & Chemical Corp., 621 F.Supp. 1013, 1015 (M.D. La. 1985), appeal pending, No. 85-3763 (5th Cir.) oo 24 Sierra Club v. Hanna Furnace Corp., 636 F.Supp. e237, S20, S30 (W.D.N.Y. 1966) 17, 23 Sierra Club v. Kerr-MeGee Corp., 23 Env’t Rep. Cas. (BNA) 1685, 1690 (W.D. La. 1985) 00 24 Sierra Club v. Raytheon Co., 22 Env’t Rep. Cas. (BNA) 1050, 1053-1055 (D. Mass. 1984) 24 SPIRG v. American Cynamid Co., 23 Env’t Rep. Cas. (BNA) 2044, 2049 (D.N.J. 1985) oo 23 SPIRG v. Anchor Thread Co., 22 Env’t Rep. Cas. (BNA) 1150, 1154 (D.NiJ. 1984) cc csetnetseene 24 SPIRG v. AT & T Bell Laboratories, 617 F.Supp. 1190, 1197-1199 (D.N.J. 1985) 2. 4, 6, 12, 23 SPIRG v. Georgia-Pacifie Corp., 615 F.Supp. 1419, 1425 (DNF. 1985) cccccccccseccsee 6, 23 SPIRG v. Jersey Central Power & — Co., 642 F.Supp. 103, 107 (D.N.J. 1986) . celiicidinidiiaiesisis “Oe SPIRG v. Monsanto Co., 600 F.Supp. 1474, 1476- Ra 4, 6, 12, 23 SPIRG v. National Starch and Chemical Corp., 23 Env’t Rep. Cas. (BNA) 1982, 1984 (D.N.J. I labia tceaepeic etic a a 23 SPIRG vy. Ragen Precision Industries, D.N.J., No. 83-1604, December 19, 1983, Transcript of Pro- ceedings, p. 7. suisse inineatateestaieiaeiatanllaglepeaitaii iv TABLE OF CASES—Continued Page SPIRG v. Simkins Industries, 617 F.Supp. 1120, 1126-1127, 1131-1132 (D. Md. 1985) 23 SPIRG v. Tenneco Polymers, 602 F.Supp. 1594, 1399 (D.N.J. 1985) — Tull v. U.S., 55 U.S.L.W. 4571, 4574, — U.S. — (April 28, 1987) 4, 21 United States v. Chevron U.S.A., Inc., 639 F.Supp. 770 (W.D. Tex. 1985) 11 United States v. City of Hopewell, 508 F.Supp. 526 (E.D. Va. 1980) 21 United States v. Detrex Chemical Industries, 4 393 F.Supp. 735, 737-738 (N.D. Ohio 1975) 0. 4, 21 United States v. Earth Sciences, Inc., 599 F.2d 368, 375-76 (10th Cir. 1979) 4 TEXTS, STATUTES & AUTHORITIES Clean Water Act § 309(d) passim § 309(g) 8, 10, 11, 12 § 309(g)(1)(A)(B) 9, 10 § 309(g) (2) (B) 10 SI tieeldciadinicaraaciniiaeinaatteiel celica alates cacialtna 20 § 402 1 § 505(a) . a 33 United States Code TEAC a ee Se ene a Trae ~l, 21 EES EO aT ales 20 SSE GE ee eo ey 2 v TABLE OF TEXTS, STATUTES & AUTHORITIES— Continued . Page § 1342 1 § 1365(a) 2 Clean Air Act 42 U.S.C. § 7413 11 Water Quality Act of 1987, Pub. L. 100-4, 101 Stat. 7 _.. 1 EES _ 18 § 314 8 40 C.F.R. 122.41(4) —_ we H.Rep. No. 1004, 99th Cong., 2d Sess. 135 (1986).000 £11 S.Rep. No. 50, 99th Cong. Ist Sess. 26, 28 ae a S.Rep. No. 414, 92d Cong., Ist Sess. 64, 80 (1971) 1, 4,5 1 Leg. Hist. 179, 118 Cong. Ree. 33693, 33700 (1972)_5, 7,8 U.S. Environmental Protection Agency Civil Pen- alty Policy (Feb. 16, 1984) BNA Federal Laws 41: 2991-3003 21 Goldman, Cleaning Up the Federal Polluters: Tax Supported Toxic shames 239 Nation 550, > es 1 STATEMENT OF INTEREST The amici states submit this brief in support of re- spondents Chesapeake Bay Foundation, Inc. and Natural Resources Defexse Council. Except for New Mexico and Maine, the amici states regulate discharges of pollutants to navigable waters within state boundaries through their National Pollutant Discharge Elimination System (‘*‘NPDES’’) permit licensing programs. These permit programs have been approved by the Administrator of the United States Environmental Protection Agency (‘‘EPA’’) pursuant fo section 402 of the Clean Water Act (33 U.S.C. § 1342).'. An NPDES permit, through the establishment of effluent limitations, limits the type and quantity of pollutants discharged to navigable waters. The amici states rely on the citizen suit provision of the Clean Water Act (section 505(a)) im seeking civil 1. The Clean Water Act (33 US.C. § 1251 et seq.) was officially entitled “the Federal! Water Pollution Control Act” until it was amended in 1977. For brevity purposes the Federal Water Pollution Control Act and the Clean Water Act will be referred to herein as the Clean Water Act or the Act. The Clean Water Act was recently amended by the 1987. Pub.L. 100-4, 101 Stat.7. These amendments will ferred to herein as the Water Quality Act of 1987. 2. Federal facilities are considered among the nation’s worst polluters. S.Rep. No. 414, 92d 7. Sess. 80 (1971); Goldman, Cleaning Up the Federal Pol > Tax- Toxic Waste, 239 Nation 550, Nov. 24, 1984. Thus, the United States has the same incentive as petitioner and industry amici herein to limit the application of section 505(a). Therefore, the views expressed by the UU ed States in this case i the proper interpretation of section 505(a) are those of a dis- charger, rot simply those of a regulator. 1 2 some states rely on section 505(a) (33 U.S.C. § 1365(a)) in seeking civil penalties against private dischargers. As ex- plained below, civil penalties are an important means of compelling compliance with the Clean Water Act. Thus, amici states have a strong interest in being able to seek civil penalties under section 505(a) for past violations. —— SUMMARY OF ARGUMENT State amici believe the Fourth Cireuit correctly de- cided the case below for several reasons. First, section 505(a) incorporates by reference section 309(d) of the Clean Water Act (33 U.S.C. § 1319(d)), which has been interpreted by the courts to allow penalties for past violations. Second, the legislative history of the Clean Water Act makes clear that the rights of citizens under section 505(a) are coextensive with the rights of the EPA Administrator, who can undoubtedly seek civil penalties under section 309(d) for past violations. Third, the legis- lative history of the Clean Water Act removes any doubt that civil penalties may be imposed under section 505(a) for pas: violations. Fourth, the ‘‘alleged to be in viola- tion’’ language in section 505(a) does not limit civil pen- alties to ongoing violations. Petitioner and industry amici believe section 505 should be interpreted narrowly. They argue that the ‘‘alleged to be in violation’’ language in section 505(a) must be read literally, but they suggest a jurisdictional test that departs from such a literal interpretation. As we will explain below, if section 505(a) is read literally, it can have only one of two meanings. Either civil penalties are authorized for past violations, or civil penalties are authorized only for violations that are occurring at “ea the precise moment that a citizen suit is filed. As will be evident, the language of the Clean Water Act and its legislative history indicate that only the first reading is correct. Petitioner and industry amici also make several policy arguments for a restrictive interpretation of section 505(a). If, as they contend, the citizen suit provision is subject to abuse, it is a problem appropriately remedied by Congressional action and, to date, Congress has not in- dicated that it shares petitioner’s and industry amici’s view of citizen suits. Petitioner and industry amici also argue that civil penalties for past violations do not fur- ther the purpose of the Clean Water Act, but this asser- tion ignores the deterrent value of civil penalties. -0- ARGUMENT CITIZENS SUING UNDER THE CLEAN WATER ACT MAY SEEK CIVIL PENALTIES FOR PAST VIOLATIONS A. Under Clean Water Act Section 309(d) Citizens Can Seek Civil Penalties For Past Violations. Section 505(a) authorizes any citizen to commence a civil action against any yverson ‘‘who is alleged to be in violation’’ of an effluent standard or limitation. Under section 505(a), the district court may grant injunctive re- lief, and also may impose any appropriate civil penalties under section 309(d) of the Clean Water Act.’ Thus, in 3. Section 309(d) provides that any person who violates specified sections of the Clean Water Act or any permit condi- tion or limitation implementing any of such sections in an NPDES permit issued by the EPA Administrator or by a state shall be subject to a civil penalty not to exceed $25,000 per day of such violations. When the Clean Water Act was amended by the Water Quality Act of 1987, civil penalties were raised from $10,000 to $25,000 per day. 4 effect, penalties provided in section 309(d) are incorpo- rated by reference into section 505(a). Under section 309(d), the EPA Administrator can seek civil penalties for past violations. Umited States v. Earth Sciences, Inc., 599 F.2d 368, 375-76 (10th Cir. 1979) ; United States v. Detrex Chemical Industries, Inc., 393 F. Supp. 735 (N.D. Ohio 1975); SPIRG v. AT & T Bell Lab- oratories, 617 F.Supp. 1190, 1197 (D.N.J. 1985); SPIRG v. Monsanto Co., 600 F.Supp. 1474, 1476 (D.N.J. 1985); Tull v. US., 55 US.L.W. 4571, — US. — (April 28, 1987). Since section 309(d) is incorporated by reference into sec- tion 505(a), citizens necessarily have the same right as the EPA Administrator to seek penalties for past vioia- tions. If section 505(a) were interpreted narrowly to dis- allow citizen suits for past violations, section 309(d) would be interpreted differently depending on whether the pen- alty action is brought by the Administrator or a citizen. Nothing in the Act or its legislative history indicates Con- gress intended such an illogical result. Had Congress in- tended to limit imposition of civil penalties in citizen suits to ongoing violations, it would have expressly limited the application of section 309(d) or omitted any reference to section 309(d) penalties in section 505(a). The legislative history of the Clean Water Act sup- ports a finding that citizens have comparable enforcement authority to that of the EPA Administrator. The Senate Report states: ‘Tt should be noted that if the Federal, State and local agencies fail to exercise their enforcement re- sponsibility, the publie is provided the right to seek vigorous enforcement action under the citizen suit pro- vision of section 505."’ S.Rep. No. 414, 92d Cong., Ist Sess. 64 (1971). The Senate Report further states: “The standards for which enforcement would be sought either under administrative enforcement or through citizen enforcement procedures are the same. Therefore, the participation of citizens in the courts seeking enforcement of water pollution control re- quirements should not result in inconsistent policy.’’ Id. at 80. In deseribing the Conference Report accompanying the Clean Water Act bill in 1972, Senator Muskie, the prin- cipal author of the Senate bill, emphasized the coextensive nature of EPA and citizen suit enforcement authority “ ‘*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 enforeed . . . Citizen suits can be brought to enforce against both continuous and intermittent vio- lations.’’ 118 Cong. Ree. 33693 (1972). The importance of citizen suits as a complementary enforcement tool to EPA action was noted by the Senate in considering the-recent amendments to the Clean Water Act. The Senate Committee on Environment and Public Works concluded that : “Citizen suits are a proven enforcement tool. They operate as Congress intended to both spur and supplement government enforcement actions They have deterred violators and have achieved significant compliance gains."’ S.Rep. No. 50, 99th Cong., Ist Sess. 28 (1985). Thus, the legislative history of the Clean Water Act and the recent amendments to the Act indicates that citizens 4. In EJ. du Pont de Nemours & Co. v. Train, 430 US. 112, 129 (1977), Justice Stevens called Muskie “perhaps the Act’s primary author’, and quoted Muskie’s remarks extensive- ly to support the Court's opinion. 6 share the same authority as the EPA Administrator to seek civil penalties for past violations.‘ In summary, since the district court in a citizen suit is authorized to impose any appropriate civil penalties under section 309(d) and the EPA Administrator is au- thorized to sue for past violations under section 309(d), citizens must also have the same authority. Otherwise, section 309(«1) would be interpreted differently depending on whether the suit is brought by the EPA Administrator or a citizen. B. The Legislative History of the Clean Water Act Sup- ports Imposition of Penalties for Past Violations Un- der Section 505. The legislative history of the Clean Water Act un- equivocally demonstrates that section 505(a) authorizes civil penalties for past violations, even if those past vio- lations have not continued to the present. Senator Muskie, in submitting the Conference Report to the Senate in 1972, explained the citizcn suit provision as follows : “The Conferees accepted a provision requiring that citizens seeking to bring an action give appropri- ate notice and wait 60 days before filing suit and to give the appropriate administrative agencies a chance to act. “This 60-day provision was not intended, how- ever, to cut off the right of action a citizen may have to violations that took place 60 days earlier but which may not have been continuous. As in the original 5. Several district courts have opined that “the remedies in citizen suits should be coextensive with those available in suits initiated by the federal government.” Con- necticut Fund for the Environment v. the job Plating Co., Inc., 623 F. . 207, 213 (D. Conn. 1985). Accord, SPIRG v. Georgia- Pacific Corp., 615 F.Supp. 1479, 1425 (D. NJ. 1985); SPIRG v. Monsanto Co., supra, 600 F Supp. at 1476-1477; SPIRG v. AT&T Bell Laboratories, supra, 617 F Supp. at 1199. 7 Senate bill, a citizen has a right under section 505 to bring an action for an appropriate remedy in the case of any person who is alleged to be, or to have been, in violation, whether the violation be a continuous one, or an occasional or sporadic ome.”’ 118 Cong. Ree. 33700, supra (statement of Sen. Muskie), 1 Leg. Hist. 179 (emphasis added). Senator Muskie’s statement that a citizen suit may be brought when a person is ‘‘alleged to be, or to have been, in violation’’ of the Clean Water Act leaves no doubt that civil penalties may be sought under section 505/a) for past violations. The legislative history of the 1987 amendments to the Clean Water Act also makes clear that citizens can obtain civil penalties for past violations. In the Senate Report discussing the preclusive effect of the new administrative civil penalty proceedings on citizen suits, it was stated that this preclusive effect: ‘“‘would not apply to an action for civil penalties for a violation 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 sub- ject of the administrative civil penalty proceeding).”’ S.Rep. No. 50, wpra, at 28 (emphasis added). Thus, the Senate Report accompanying the 1987 Clean Water Act amendments acknowledges a citizen's right to seek civil penalties for past violations. Significantly, nothing in the legislative history of the Clean Water Act or the 1987 amendments supports the view of petitioner and industry amici that civil penalties may only be imposed for ongoing violations. Petitioner cites several passages from the Senate Report and the hearing record! which refer to citizen svits as a useful tool to abate violations. Pet. Br. 26-27. Upon reviewing the context in which these statements were made, it becomes clear that Congress was addressing the circumstances re- s quired for obtaining injunctive relief and not addressime the cireumstances when civil penalties might be appro- priate. Indeed, when Congress foeused on che cireum- stances when civil penalties were appropriate, the prin- cipal author of the Senate bill stated that a citizen can sue ‘‘any person who is alleged to be, or to have been, in vio- lation’’ of the Clean Water Act. 118 Cong. Ree. 33700, supra (statement of Senator Muskie), 1 Leg. Hist. 179 (emphasis added). C. The “Alleged To Be In Violation” Section 505(a) Does Not Limit Penalties to Ongoing Violations. Petitioner and industry amici argue that the “‘alleged to be in violation’ language in section 505(a) limits civil penalties te ongoing violations. For several reasons, this argument is unconvincing. As explained above, citizens possess the same authority to seek civil penalties for past violations as dees the EPA Administrator because section 309(d) is incorporated by reference into section 505/(a). Further, the above described legislative history of the Clean Water Act makes clear that citizens can seek civil penalties for past violations. As we will now explain, the 1987 amendments to sece- tion 309 of the Clean Water Act also demonstrate that Congress did not intend the use of the present tense in section 505(a) to limit the imposition of civil penalties to ongoing violations. In section 309(g¢), which was added in 1987, Congress alternated between the past and present tense in describing the authority of the EPA Administra- tor and the Neeretary of the Army te impose civil penalties administratively for violations of the Clean Water Act® 6 Section 309 as amended by section 314 of the Water Quality Act of 1987 provides in part: (Continued on following page) 9 Sections 309(g)(1)(A) and (B) allow the Secretary of the Army or the EPA Administrator to impose penalties when (Continued from previous page) “(1) Violations.—Whenever on the basis of any information avail- able— (A) the Administrator finds that any person has violated sec- tion 301, 302, 306, 307, 308, 318, or 405 of this Act, or has violated any permit condition, or limitation implementing any of such sections in a permit issued under section 402 of this Act by the Administrator or by a State, or in a permit issued under section 404 by a State, or (B) the Secretary of the Army (hereinafter in this subsec- tion referred to as the ‘Secretary’) finds that any person has violated any permit condition or limitation in a permit issued under section 404 of this Act by the Secretary, the Administrator or Secretary, as the case may be, may, after consultation with the State in which the violation occurs, assess a class | civil penalty or a class I! civil penalty under this subsection. “(2) Classes of Penalties.— (A) Class |—The amount of a class | civil penalty under paragraph (1) may not exceed $10,900 per violation, except that maximum amount of any class | civil penalty under this subparagraph shall not exceed $25,000. Before issuing an order assessing a civil penalty under this subparagraph, the Admin- istrator or the Secretary, as the case may be, shall give to the person to be assessed such penalty written notice of the Ad- ministrator’s or Secretary’s proposal to issue such order and the opportunity to request within 30 days of the date the notice is recei by such person, a hearing on the proposed order. Such hearing shall not be subject to section 554 or 556 of title 5, United States Code, but shall provide a reasonable oppor- tunity to be heard and to present evidence. (B) Class 1—The amount of a class II civil penalty under peragraph (1) may not exceed $10,000 per day for each day during which the violation continues; except that the maximum amount of any class I! civil penalty under this subparagraph shall not exceed $125,000. Except as otherwise provided in this subsection, a class Il civil penalty shall be assessed and col- lected in the same manner, and subject to the same provisions, as in the case of civil penalties assessed and collected after notice and opportunity for a hearing on the record in accord- ance with section 554 of title 5, United States Code. The Ad- ministrator and the Secretary may issue rules for discoverv nrocedures for hearings under this subparagraph.” (Emphasis added.) 10 ‘‘any person has violated’’ certain provisions of the Act. (Emphasis added.) However, the Secretary or Admin- istrator may only assess the penalty after consulting ‘‘ with the State in which the violation occurs.’’ (Emphasis added.) Further, with regard to class II civil penalties, section 309(g)(2)(B) states the amount ‘‘may not exceed $10,000 per day for each day during which the violation continues.’’ (Emphasis added.) If the present tense language in sections 309(g)(1) and (g)(2) was interpreted narrowly as petitioner and industry amici interpret the phrase ‘‘alleged to be in violation’’ in section 505(a), the Administrator and the Secretary of Army could not recover civil penalties for past violations. However, federal officials can indeed recover civil penalties for past violations under section 309(g). The Senate Report discussing the authorities of the United States under section 309(g) states as follows: ‘“‘This new authority is designed to address past, rather than continuing violations of the Act. Con- tinuing violations are more appropriately addressed by abatement orders or injunctive actions and, if EPA seeks both civil penalties and injunctive relief, one judicial action should be filed.’’ S.Rep. No. 50, supra, at 26. Thus, the alternating use of present and past tense in section 309(g) indicates that Congress did not intend to draw distinctions between past and present violations in authorizing citizens to seek civil penalties under section 505 (a). Moreover, the legislative history of section 309(g) also makes clear that Congress did not intend the ‘‘alleged to be in violation’’ language in section 505(a) to limit civil penalties to ongoing violations. Significantly, the U.S. House of Representatives used a phrase virtually 11 identical to the language at issue in this case in describ- ing the Administrator’s authority to impose administrative civil penalties under section 309(g). The report on the House bill amending the Clean Water Act states in per- tinent part as follows: ‘‘The amendment authorizes the assessment of admin- istrative civil penalties for violations of the Act. Whenever on the basis of any information available to him the Administrator finds that any person is im violation of section 301 (except with respect to a vio- lation of section 404) ; 302, 306, 307, 318 or 405 of the Act or ts in violation of any permit condition or limi- tation implementing any of these sections in a permit issued under section 402 of the Act, he may, after con- sultation with the state in which the violation occurs, assess a civil penalty of not more than $10,000 per day of violation, except that the penalty shall not ex- ceed a total of $125,000."’ H. Rep. No. 1004, 99th Cong., 2d Sess. 135 (1986) (emphasis added). As noted above, the legislative history of section 309(g) makes clear that the EPA Administrator and the Secretary of the Army have authority to seek administrative civil penalties for past violations. Since Congress did not in- tend to limit civil penalties under section 309(g) to on- going violations by using the phrase ‘‘is in violation,’’ it could not have intended that the virtually identical lan- guage in section 505(a) limit civil penalties to ongoing vio- lations.’ In summary, the legislative history of the 1987 amend- ments and Congress’ alternating use of the past and pres- 7. Under the Clean Air Act, which employs language similar to the present tense language in section 505(a), the EPA Administrator has authority to seek penalties for past violations. United States v. Chevron U.S.A. Inc., 639 F.Supp. 770 (W.D.Tex. 1985) The Clean Air Act provides that the EPA Administrator may bring an action for civil penalties based upon a finding that “any person is in violation” of requirements of the Act. 42 U.S.C. § 7413. 12 ent tense in section 309(g) further demonstrate that Con- gress did not intend that its use of the phrase ‘‘alleged to be in violation’’ in section 505(a) limit civil penalties to ongoing violations. In SPIRG v. Monsanto Co., supra, 600 F.Supp. at 1476, the court held that ‘‘a plausible construction of the language [in section 505(a)]} is that one is ‘in violation’ and continues to be ‘in_violation’ by having ‘violated’ ’’. Such a construction of section 505(a) is particularly ap- propriate because of the nature of pollution violations. The harm caused by a violation of an effluent limitation is not confined to the day of discharge. Rather, the pollu- tants harm aquatic life and humans for many years. The immediate effects of an illegal discharge may be the clos- ing of waters to swimming and fishing or the death of aquatic life. But the long term effects of such a discharge - ean also be serious, especially if the toxic substances are bioaccumulated in shellfish and other organisms that are consumed by humans. In addition, the cumulative effect of numerous violations of effluent limitations may be to limit beneficial uses of a water body. Thus, because of the nature of pollution violations, the phrase ‘‘alleged to be in violation’ is appropriately construed to include past violations of the Clean Water Act. Further, to interpret section 505(a) to allow civil penalties only for ongoing violations would be illogical. Civil penalties, by their very nature, are imposed for past conduct, whether or not the conduct is continuing or threat- ening to continue. See SPIRG v. AT & T Bell Laborator- ies, supra, 617 F.Supp. at 1198. In that respect, civil pen- alties are different from prospective relief, sueh as in- junctions, which are imposed for conduct that is continu- ing or threatening to continue. The fact that conduct is 13 continuing, or not continuing, may be highly material in determining the amount of civil penalties. This fact, however, is immaterial in determining whether such pen- alties can be jurisdietionally imposed. For the above reasons, the words ‘‘alleged to be in violation’? in section 505(a) may reasonably be read to inelude unlawful conduct occurring before a lawsuit is filed as well as unlawful conduct that continues into the present. D. Petitioner’s View of Citizen Suit Jurisdiction Con- flicts With Its Own Literal Reading of Section 505(a). Petitioner and amici argue that section 505(a) should be interpreted literally, but then they advocate a juris- dictional test that departs from this literal approach. If the ‘‘alleged to be in violation’’ language in section 505(a) is read literally, one of two conclusions must be reached. Either no jurisdiction lies unless a violation is occurring on the day suit is filed or jurisdiction lies even if the violation is not ongoing. As we will now explain, only the second reading is correct. The lower courts have adopted three different inter- pretations of section 505(a). The Fifth Cireuit, in Hamker v. Diamond Shamrock Chemical Corp., 756 F.2d 392, 395 (5th Cir. 1985), held that no civil penalties can be imposed under section 505(a) unless a violation is occurring on the day suit is filed. The Fourth Circuit, in Chesapeake Bay Foundation v. Gwaltney of Smithfield, 791 F.2d 304, 313 (4th Cir. 1986), held that citizens can seek penalties under section 505(a) for permit violations committed entirely in the past. The First Circuit, in Pawtuxet Cove Marina Inc. v. Ciba Geigy Corp., 807 F.2d 1089, 1094 (Ist Cir. 1986), held that: ‘‘an action under 33 U.S.C. § 1365 may go forward if the citizen-plaintiff fairly alleges a continuing likeli- 14 hood that the defendant, if not enjoined, will again proceed to violate the Act. In reviewing action: ader this standard, the district court should consider, among other things, the isolated or recurrent nature of the infraction, the degree of scienter on the part of the defendant, and the sincerity of its assurances against future violations. Cf. Bonastia, 614 F.2d at 912. We thus agree with the result in Mamker v. Diamond Shamrock Chemical Corp. 756 F.2d 392 (5th Cir. 1985), in which the court held the plaintiff's allegation of a single, past violation to be insufficient. We do not, however, agree with the reasoning which, apparently, led the Louisiana district court, following the Hamker decision, to dismiss a number of actions simply because no violations occurred on the dates the complaints were filed. See Sierra Club v. Copolymer Rubber & Chemical Corp., 621 F.Supp. 1013, 1015 (M.D. La. 1985).