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

No. 86-473 MAY 2'7 1947

IN THE JOSEP!

Supreme Court of the Uniter-States—

OCTOBER TERM, 1986

et

o> .

at.

PAY “GWALTNEY OF SMITHFIELD, LTD.,

Daa Petitioner,

CHESAPEAKE BAY FOUNDATION, INC.,

and

NATURAL RESOURCES DEFENSE COUNCIL, INC.

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NATIONAL WILDLIFE

FEDERATION IN SUPPORT OF RESPONDENTS

MARK VAN PUTTEN*

NORMAN L. DEAN, JR.

NATIONAL WILDLIFE FEDERATION

1412 Sixteenth Street, N.W.

Washington D.C. 20036

(202 )637-3736

*Counsel of Record

TABLE OF CONTENTS

PAGI

STATEMENT OF INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT ......------ce:esserersessesenersnereren” ?

RIIUINETIINT ocncxcaceonvoceeosnvsseorvonsonnsesennscoennesennsnenenneeerer ere" 3

1. Congress gave citizen plaintiffs the authority to seek

civil penalties for past violations of the Act in order to

deter specifically and generally, future violations....... 3

A. Citizen enforcement of the Refuse Act: qui tam

ACTIONS .....---0eeeereenernennrreneener® eeatcigsiiaetinsiceeereeriwnes 7

B. Congressional hearings on predecessor bills to

S_ 2770 and the evolution of the Clean Water Act

citizen action for civil pemnalties.......----eeeeererrre 12

1. The 1970 bills & Hearings .....------es-eereereree 12

> The 1971 bills & hearings ...... i cceiclaenianinnteian 15

11. The broad deterrent purposes of the Clean Water Act

would be thwarted by a complicated jurisdictional bar

to judicial discretion to assess civil penalties in the

absence of continuing YiGlatiOMS .........-+-seeeeereeereseeere” 19

TTL. COmclusion ......----.-rereerrerererer™ enictemmnesonennnns 22

BEST AVAILABLE COPY

TABLE OF AUTHORITIES

PAGE

Cases

Anderson v. Norfolk & Western Railway, 349 F.Supp. 121

(D.Wea. 19°72) —naneen-onnnnccorrecoreornnsnerennnnnnesnenrerrnnne ee 17

Bass Anglers Sportsman's Society of America V. Scholze

Tannery, Inc. 329 F.Supp. 339 (D.Tenn. 1971) .-.------- 17

Bass Anglers Sportsman's Society of America V. U.S. Ply-

wood-Champion Papers, Inc., 324 F.Supp. 302 (D.Tx.

Pe) | MM? 17

Chemical Mfr's Assoc. et al. v. Natural Resources Defense

Council, Inc., 470 U.S. 116 (1985) .----ccecceceereeenennsnnnnnerer®

Chesapeake Bay Foundation v. Gwaltney of Smithfield,

Ltd., 611 F.Supp. 1542 (E.D. Va., 1985) -------ceseserereerers 20,21

E.1. duPont de Nemours & Co. et al. v. Train, 430 US. 112

Ty) a=

Enquist v. Quaker Oats Co., 327 F.Supp. 347 (D.Neb.

| en ncenrenmaionngennene=ne ye 17

Environmental Protection Agency V. Nat'l Crushed Stone

Assoc. et al., 449 US. 64, (1980) ...-----ceeerereenerernsnennerers

Tull v. U.S., 55 U.S.L.W. 4571 (US. Apr. 28, 1987) --.-. 3.4

Train v. Colorado Public Interest Research Group, Inc. et

al. 426 US. 1 (1976) ...-..------c-seereesernsennsensenssensnsrssnsnsro 3

U.S. ex rel. Mattson Vv. Northwest Paper Co., 327 F.Supp.

87 (D.Mimn. 1971) ....-------e--eeeseeesenseeneennsenennnnnnns see 17

U.S. v. Floride Vanderbilt Development Co., 326 F.Supp.

289 (D.Fla. 1971) ...-cco-ccoe--sesernsesnsenssenncennsnenensnsnnnsesnesee 17

U.S. v. Standard Oil Co., 384 US. 224 (1966) ..--------- 7

U.S. v. Republic Steel Corp., 362 US. 482 (1960) ......--- 7

Wyandotte Transp. Co. v. U.S., 389 US. 191 (1967) ....-- 7

Weinberger v. Romero Barcelo, 456 US. 305 (1982)....--- 20

Statutes

Clean Air Act, 42 U.S.C. § 7401 et SCG....-----ceereeecerereereere 4,15

Comprehensive Environmental Response, Compensation,

and Liability Act of 1980, 42 USC. § 9601-9657 .....--. 19,20

Federal Water Pollution Control Act, as amended by the

Clean Water Act of 1977, 33 USC. §§ 1251-1376....-.. passim

The Hazardous and Solid Waste Amendments of 1984, Pub.

Law No. 98-616, 98 Stat. 3221, reprinted in 1984 US.

EE

Refuse Act of 1899, § 13 of the Rivers & Harbors Act of

1899, 30 Stat. 1152 codified at 33 U.S.C. §§ 407, 411,

a _ ccnsscounsuveusoncevacses

Resource Conservation and Recovery Act of 1976, 42

SE ce

Superfund Amendments and Reauthorization Act of 1986,

Pub. Law. No. 99-499, 100 Stat. 1613, reprinted in 1986

U.S. Code Cong. & Ad. News (Dec. 1986 Advance ed.)

Water Quality Act of 1987, Pub. Law No. 100-4, 101 Stat.

7, reprinted in i987 U.S. Code Cong. & Ad. News

ED

Congressional Materials

Cong. Research Service, A Legislative History of the Water

Pollution Control Act Amendments of 1972 (1973).....

House Gov't Operations Comm., Enforcement of the Refuse

Act of 1899, H. Rep. No. 1333, 92nd Cong., 2d Sess.,

ES ae

House Gov’t Operations Comm., Our Waters and Wetlands:

How the Army Corps of Engineers Can Help Prevent

Their Destruction and Pollution, H. Rep. No. 917, 91st

ESS

Mercury Pollution and Enforcement of the Refuse Act of

1899 (Part 1): Hearing Before the Conservation & Nat-

ural Resources Subcomm. of the House Comm. on Gov't

Operations, 92nd Cong., Ist Sess. (July 1, 1971)..........

Mercury Pollution and Enforcement of the Refuse Act of

1899 (Part 2): Hearings Before the Conservation &

Natural Resources Subcomm. of the House Comm. on

Gov't Operations, 92nd Cong., Ist Sess. (Oct. 2! & Nov.

ae A... ssccnsavonenesiivesscoceces

Staff of Conservation and Natural Resources Subcommittce

of the House Comm. on Government Operations, Qui

Tam Actions and the 1899 Refuse Act: Citizen Lawsuits

Against Polluters of the Nation's Waterways, 9\st Cong..,

2d Sess. (Comm. Print, Sept. 1970) ............... eee

passim

19

20

20

passim

10,11,12

6,8

passim

6,7,9

iv

The Refuse Act Permit Program: Hearings before the Sub-

comm. on the Environment of the Senate Comm. on Com-

merce, 92nd Cong., Ist Sess. (Feb. 18 & 19, 1971)......

The Establishment of a National Industrial Wastes Inven-

tory: Hearings Before the Conservation & Natural Re-

sources Subcomm. of the House Comm. on Government

Operations, 91st Cong., 2nd Sess. (Sept. 17, 1970) ......

Water Pollution Control Legislation: Hearings before the

Subcomm. on Air & Water Pollution of the Senate

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

Water Pollution—i970 (Part |): Hearings before the Sub-

comm. on Air & Water Pollution of the Sen. Comm. on

Public Works, 91st Cong., 2d Sess. (April 20, 21 & 27,

Secondary Materials

Environmental Law Institute, Citizen Suits: An Analysis

of Citizen Enforcement Actions Under EPA-Adminis-

tered Statutes (Sept. 1984) .......cccccceseeseeeeerseeeeeesenereeeeees

Environmental Protection Agency, “Clean Water Act Civil

Penalty Policy” (Feb. 11, 1986) .......::sssseseereessesreres

Environmental Protection Agency, “Civil Penalty Policy”

(Federal Laws] Env't Rep. (BNA) Re ncinsntenterinnis

H. Lieber, Federalism and Clean Waters: The 1972 Water

Pollution Control Act (1975) ....ccccccccesseeeeeeeeeeeeeeeeereeeeeeees

6,9

6,7,8,11

passim

6,13,14

No. 86-473

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

a

GWALTNEY OF SMITHFIELD, LTD.,

Petitioner,

Vv.

CHESAPEAKE BAY FOUNDATION, INC.,

and

NATURAL RESOURCES DEFENSE COUNCIL, INC.

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NATIONAL WILDLIFE

FEDERATION IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST OF AMICUS CURIAE

With written consent of the parties,’ the National Wildlife

Federation (“NWF”) respectfully submits this amicus curiae

brief pursuant to Supreme Court Rule 36.2. NWF is the nation’s

largest, not-for-profit, conservation organization with over 4.6

million members, contributors and supporters and has 49 affili-

ated state oranizations. The question before the Court is

whether citizen plaintiffs suing violators of the Clean Water Act

under section 505(a) must, as a jurisdictional matter, allege and

prove that the asserted violations are continuing at the time the

action is filed. This issue implicates the efficacy of the role of

citizens and citizen groups like NWF in using Clean Water Act

§ 505(a) to abate water pollution by deterring future violations.

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

2

As a citizen group which has in the past prosecuted citizen

enforcement actions under § 505(a), NWF is concerned that this

section be interpreted to discourage violations of the law.

SUMMARY OF ARGUMENT

Section 505(a) of the Clean Water Act (“CWA” or “the Act”)

was intended by Congress to give citizens a vital role in abating

water pollution through the prosecution of citizen enforcement

actions. To that end, Congress specifically authorized citizens to

file enforcement suits against violators in which civil penalties

could be assessed for past violations.’ In this way, Congress

enlisted the aid of concer.ied citizens in stopping specific viola-

tions and, just as important, in deterring generally violations of

the Act.

Congress also recognized that the circumstances involving par-

ticular violations might warrant a civil penalty less than the statu-

tory maximum or, perhaps, »0 penalty at all. Congress

authorized the federal district courts to exercise discretion in

determining the appropriate penalty amount. Therefore, where

violations have ceased at the time of the filing of a citizen suit

complaint, a court can fashion the appropriate remedy—as the

district court did here—considering, inter alia, how the specific

and general deterrence policies of the Act will best be served.

The reading of section 505(a) urged upon the Court by Peti-

tioner would supplant this judicial discretion with a complicated,

jurisdictional bar to all citizen suits for penalties involving viola-

tions that have ceased when the complaint is filed. This jurisdic-

tional bar would preclude citizen actions for penalties in such

cases regardless of whether the purposes of the Act would be

served by a civil penalty remedy.

2. Petitioner does not contend that citizens are barred from seeking to assess

civil penalties for past violations. Rather, Petitioner argues that this authority

is ancillary to the authority to obtain injunctive relief against continuing viola-

tions. Therefore, according to Petitioner, citizen plaintiffs must allege and

prove that a violation of the Act was occurring at the time the complaint 1s filed

in order for the court to have jurisdiction to assess civil penalties for the past

violations.

ARGUMENT

I. Congress gave citizen plaintiffs the authority to seek civil

penalties for past violations of the Act in order to deter

specifically and generally future violations.

Petitioner urges upon this Court a narrow understanding of the

role contemplated by Congress for citizen enforcement actions by

suggesting that “pollution abatement” is necessarily synonymous

with prospective, i.e. injunctive, relief. In its brief, Petitioner

cites repeatedly to the legislative history of the Act to argue that

Congress intended that citizen suits be brought only to “abate”

pollution. See, e.g., Pet. Brief at p. 9, pp. 26-27 n. 27, and p. 29.

Petitioner concludes from these citations, without further discus-

sion, that the only way Congress intended that citizens “abate”

pollution is by filing suit against continuing violators.

Petitioner also slights the significance of the unequivocal

remarks of Senator Muskie, the single most important legislator

with respect to the development of the Act,’ in which he stated

that, “[{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.” 118 Cong.

Rec. 33700 (1972) (emphasis added), reprinted in Cong.

Research Service, A Legislativgfistory of the Water Poliution

3. Petitioner suggests that this Court should accord Sen. Muskie’s remarks

no greater weight than due those of any individual legislator. Pet. Brief at 28.

However, the Court has frequently recognized Sen. Muskie’s central role in the

development of the Clean Water Act and has repeatedly relied on his remarks in

interpreting the Act. E.g., Tully. US. SS U.S.L.W. 4571, 4574, n. 8 (Apr. 28,

1987); Chemical Mfr's Assoc. et al. vy. Natural Resources Defense Council,

Inc., 470 U.S. 116, 140 (1985) (Marshall, J., dissenting) (quoting Sen. Muskie

and identifying him as “the major drafter and Senate manager of the [1977] bill

[amending the Act]”); Environmental Protection Agency v. Nat'l Crushed

Stone Assoc. et al., 449 U.S. 64, 71, n. 10 (1980) (referring to Sen. Muskie as

“the principal Senate sponsor of the Act”); E./. duPont de Nemours & Co. et al.

v. Train, 430 U.S. 112, 129 (1977) (relying on Sen. Muskie’s remarks in

presenting the Conference report to the Senate and referring to him as “perhaps

the Act's primary author”); Train v. Colorado Public Interest Research Group,

Inc. et al., 426 U.S. 1, 14 (1976) (relying on colloquy participated in by Sen.

Muskie to interpret Act and referring to him as “the Act's primary author’ ).

4

Control Act Amendments of 1972, 1794 (Comm. Print 1973)

(hereinafter “/972 Legislative History”). Petitioner would have

this Court understand that these remarks represent merely the

isolated views of an individual legislator, Pet. Brief at 28, n. 29,

and that they do not fairly characterize the kind of “pollution

abatement” role Congress desired for citizen plaintiffs.

In making this argument, Petitioner ignores the broader deter-

rence role contemplated by Congress for Clean Water Act citizen

suits. This Court has recently recognized that deterrence is a

primary function of civil penalties assessed under the

Act: “[t]he legislative history of the Act reveals that Congress

wanted the district court to consider the need for retribution and

deterrence, in addition to restitution, when it imposed civil penal-

ties.” Tull v. U.S., 55 U.S.L.W. 4571, 4574 (Apr. 28, 1987).

Petitioner is able to ignore this essential feature of the Act by

confining its discussion of the legislative history to the latter

stages of the Act’s development, beginning with the int: oduction

of S. 2770 and H.R. 11896 in October 1972.*

It is true that the debates on S. 2770 and H.R. 11896 contain

little discussion of citizen enforcement actions to assess civil pen-

alties. This is because both bills, as introduced, contained identi-

cal language authorizing citizen actions to assess penalties for

past violations. S. 2770, 92nd Cong., Ist Sess., § 505(a), 1972

Legislative History at 1704; H.R. 11896, 92nd Cong., Ist Sess.,

§ 505(a), 1972 Legislative History at 1074.

Congress’s intentions in authorizing citizen actions to recover

civil penalties for past violations can be discerned only by review-

ing congressional action during the two years immediately pre-

ceding the introduction of these two bills.’ This history provides

the context for understanding Senator Muskie’s remarks as a

4. Based on the lack of significant discussion of civil penalties in the history

of these two bills, Petitioner urges this Court to attach no significance to the fact

that Congress gave citizen plaintiffs under the Clean Water Act an additional,

potent remedy—assessing civil penalties—not available under the comparable

section of the Clean Air Act, upon which § 505(a) was modelled. Pet. Brief at

27-28.

5. The correctness of this approach is demonstrated by the Senate Report on

S. 2770 which explicitly referenced much of this earlier history. S. Rep. No.

succinct and accurate summary of congressional intent that Sec-

tion 505(a) authorizes citizen suits for penalties, regardless of

whether the violations were occurring at the time the action was

initiated.

Congressional consideration of this issue in the 92nd and 9 Ist

Congresses occurred contemporaneously on two parallel

fronts: (1) congressional hearings and reports on citizen

enforcement of the Refuse Act of 1899; and (2) congressional

hearings on the predecessor bills toS. 2770 & H.R. 11896. This

history demonstrates Congress’s intent to fashion an effective

pollution abatement role for citizens in order to deter, both specif-

ically and generally, violations of the Act.

In 1972, Congress amended the Federal Water Pollution Con-

trol Act out of frustration with the general ineffectivene.s and

limited enforcement of existing federal waier pollution control

laws. The Senate Committee on Public Works stated in its report

on S. 2770, “[f]rom its two-year study on the Federal water

pollution control program, the Committee concludes that the

national effort to abate and control water pollution has been

inadequate in every vital aspect.” S. Rep. No. 414, supra, at 7,

1972 Legislative History at 1425. The Committee was well

equipped to make this statement having spent over two years

holding hearings on federal water pollution control activities and

considering various proposals to refashion the federal govern-

ment’s role. S. Rep. No. 414, supra, at 3-4, 1972 Legislative

History at 1421-22.°

Congress was particularly frustrated with governmental failure

to enforce the existing laws. Senator Muskie, Chairman of the

Subcommittee on Air & Water Pollution and the primary author

414, 92nd Cong., Ist Sess. (1971) 3-4, 1/972 Legislatives History at 1421-22

(Committee description of 1970 and 1971 riearings).

6. A general background of the 1972 Act and an overview of the congres-

sional hearings that resulted in S. 2770 and H.R. 11896 can be found in H.

Lieber, Federalism and Clean Waters: The 1972 Water Pollution Control Act \-

75 (1975).

6

of the Clean Water Act, summarized this congressional dissatis-

faction and his remarks illustrate Congress’s search for an alter-

native enforcement mechanism:

The continued use of the 1948 abatement procedure also

contributes to delay[; that and] the almost total lack of

enforcement encourage governing bodies and officials to

look for other, more direct avenues of action against water

polluters and water pollution. One such approach ... is

the use of section 13 of the 1899 Refuse Act....

117 Cong. Rec. 38799, (November 2, 1971).

Congressional hearings and reports from 1970 and 1971’

demonstrate Congress's desire that past violations of the law be

vigorously prosecuted to deter generally and specifically future

violations of the law. Initially, the hearings and reports of Con-

gressman Reuss’s Conservation & Natural Resources Subcom-

mittee suggested that this objective could be served by

encouraging qui tam citizen actions to assess penalties for past

7. During this time, hearings were held and/or reports were issued by

subcommittees of the Senate Public Works Committee, the Sena’e Commerce

Committee and the House Government Operations Committee. House Comm.

on Gov't Operations, Our Waters and Wetlands: How the Army Corps of Engi-

neers Can Help Prevent Their Destruction and Pollution, H. Rep. No. 917, 91st

Cong., 2d Sess. (1970); Conservation & Natural Resources Subcomm. of the

House Comm. on Gov't Operations, Qui Tam Actions and the 1899 Refuse Act:

Citizen Lawsuits Against Polluters of the Nation's Waterways, 9\st Cong., 2d

Sess. (Comm. Print, Sept. 1970); Water Pollution—1970 (Part 1): Hrgs.

before the Subcon.m. on Air & Water Pollution of the Senate Comm. on Public

Works, 91st Cong., 2d Sess. (April 20, 21, & 27, 1970); The Establishment of a

National Industrial Wastes Inventory: Hrg. before the Conservation and Natu-

ral Resources Subcomm. of the House Comm. on Gov't Operations, 9\st Cong.,

2nd Sess., (Sept. 17, 1970); Water Pollution Control Legislation: Hrgs. before

the Subcomm. on Air & Water Pollution of the Senate Comm. on Public Works,

92 Cong., Ist Sess. (1971); The Refuse Act Permit Program: Hrgs. before the

Subcomm. in the Env't of the Senate Comm. on Commerce, 92nd Cong., |st

Sess. (Feb. 18 & 19, 1971); Mercury Pollution and Enforcement of the Refuse

Act of 1899 (Part 1): Hrg. Before the Conservation & Natural Resources

Subcomm. of the House Comm. on Gov't Operations, 92d Cong., |st Sess.,

(July 1, 1971): Mercury Pollution and Enforcement of the Refuse Act of 1899

(Part 2). Hrgs. before the Conservation & Natural Resources Subcomm. of the

House Comm. on Gov't Operations, 92d Cong., \st Sess., (Oct. 21 & Nov. 5,

1971).

7

violations of the Refuse Act of 1899. This, it was hoped, would

fill the vacuum created by the federal government's failure to

enforce vigorously the law.

After further hearings convinced Congress that these actions

would not be as effective as hoped, Congress imported a similar

concept into the Clean Water Act. Based on experience under

the Refuse Act and working with the citizen suit provision of the

Clean Air Act as its model, Congress added citizen authority to

assess civil penalties for past violations to the Clean Water Act.

A. Citizen enforcement of the Refuse Act: gui tam actions.

Congress's frustration with lax enforcement >f federal water

pollution control law and with the lack of responsiveness by the

government to citizen involvement in enforcement was first mani-

fested in oversight hearings on enforcement of the Refuse Act of

1899° held by the House Government Operations Committee's

Conservation & Natural Resources Subcommittee in 1969-

1971.° This subcommittee, in particular its chairman, Congress-

man Reuss, played a leading role in the deliberations on citizen

8. The Refuse Act, § 13 of the Rivers & Harbors Act of 1899, 30 Stat.

1152, codified at 33 U.S.C. § 407, provides, in pertinent part:

It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or

procure to be thrown, discharged, or deposited .. . any refuse matter of

any kind or description whatever other than that flowing from streets and

sewers and passing therefrom in a liquid state, into any navigable water

of the United States, or into any tributary of any navigable water ....

This “ourt has construed the Refuse Act to prohibit discharges of liquid,

industrial wastes (municipal sewage was excluded) and to authorize penaities,

damage actions, and injunctive relief. U.S. v. Standard Oil Co., 384 U.S. 224,

230 (1966); U.S. v. Republic Steel Corp., 362 U.S. 482, 490 (1960); Wyan-

dotte Transp. Co. v. U.S., 389 U.S. 191, 203-04 n. 15 (1967).

9. Inaddition to the hearings discussed in the text, see The Establishment of

a National Industrial Wastes Inventory: Hearings Before the Conservation &

Natural Resources Subcomm. of the House Comm. on Gov't Operations, 9\st

Cong., 2nd Sess. (Sept. 17, 1970) (Comm. Print); Mercury Pollution and

Enforcement of the Refuse Act of 1899: Hearings Before the Conservation &

oe Resources Subcomm. of the House Comm. on Gov't Operations, 92nd

ong., Ist Sess. (July 1, 1971)

8

enforcement of federal water pollution control laws that led even-

tually to section 505(a). The Subcommittee’s hearings and

reports occurred at the same time as Congress was considering

amendments to the Federal Water Pollution Control Act and

provide the context for the development of the Clean Water Act’s

citizen enforcement provisions.

The Subcommittee focused national attention on the Refuse

Act of 1899 as “a potentially powerful . . . weapon for combatting

the pollution of [the] Nation’s waters [which was] only sporadi-

cally used.” House Comm. on Gov't Operations, Our Waters and

Wetlands: How the Corps of Engineers Can Help Prevent Their

Destruction and Pollution, H. Rep. No. 917, 91st Cong., 2d Sess.

15-18 (1970). The Refuse Act provides that any person who

provides information about a violation of the Act that leads to a

conviction is entitled to one-half of any fine paid. 33 U.S.C.

§ 411. Violators are subject to criminal prosecution and the

imposition of fines of between $500 and $2500 per violation. /d.

In light of lax government enforcement of the Refuse Act, the

Committee emphasized the potential for citizen actions to recover

the informant’s share of the penalty. The Committee suggested

that a citizen may, where “the Government has not previously

instituted a prosecution against the violator, . . . institute his own

suit in the name of the United States (a qui tam action) to collect

his moiety of the penalty.” /d. at 17.

The Committee’s report generated tremendous interest in the

Refuse Act. “Many Members of Congress and many thousands

of citizens [ ] asked for additional information on how to assist

the Federal Government in enforcing the 1899 law and abating

water pollution.” House Comm. on Gov't Operations, Enforce-

ment of the Refuse Act of 1899, H. Rep. No. 1333, 92nd Cong..,

2nd Sess., 11 (1972). In response to the outpouring of public

interest, the Subcommittee staff prepared a memorandum which

described the “possible use [of qui tam actions] in implementing

the Refuse Act of 1899.” Conservation and Natural Resources

Subcomm. of the Comm. on Gov't Operations, Qui Tam Actions

and the 1899 Refuse Act: Citizen Lawsuits Against Polluters of

9

the Nation's Waterways; 9\si Cong., 2d Sess. (Comm. Print,

Sept. 1970). The memorandum surveyed the pertinent law to

assess the efficacy of citizen enforcement of the Refuse Act and to

encourage that such actions be filed.

Subsequently, on February 18 and 19, 1971, the Senate Com-

merce Committee’s Subcommittee on the Environment held

hearings on the Refuse Act permit program, in which Congress-

man Reuss and other members of the House Government Opera-

tions Committee’s Conservation & Natural Resources

Subcommittee participated. Refuse Act Permit Program: Hear-

ings before the Subcomm. on the Environment of the Comm. on

Commerce, 92nd Cong., Ist Sess. (Feb. 18 & 19, 1971). At

those hearings, the Subcommittee heard testimony about enforce-

ment of the Refuse Act, the role of citizen informants, and the

need for fines substantial enough to deter violators. /d. at 28 &

29 (Statement of John Burns, Exec. Ass’t to the U.S. Att'y for

the S.D: N.Y.) (“informant’s fees ... [were] a strong induce-

ment for people to come forward with information about the

water pollution” and success in Refuse Act enforcement

depended on “fines .. . substantial enough that they were some-

what a deterrent to industrial polluters”); id. at 74 (statement of

J.G. Speth) (as a result of delays in implementing proposed

Refuse Act permit program “successful citizen actions (qui tam)

will be a practical impossibility” ).

Congressman Reuss’s Subcommittee on Conservation & Natu-

ral Resources followed up this hearing with three additional,

lengthy hearings on enforcement of the Refuse Act. Mercury

Pollution and Enforcement of the Refuse Act of 1899 (Part 1):

Hearing Before the Conservation & Natural Resources Sub-

comm. of the House Comm. on Gov't Operations, 92nd Cong., | st

Sess., (July 1, 1971); Mercury Pollution and Enforcement of the

Refuse Act of 1899 (Part 2): Hearings Before the Conservation

& Natural Resources Subcomm. of the House Comm. on Gov't

Operations, 92nd Cong., Ist Sess., (Oct. 21 & Nov. 5, 1971).

The government's failure to respond to citizen complaints by

initiating enforcement actions was a major topic of discussion at

10

these hearings. Subcommittee Chairman Reuss had filed 268

complaints of Refuse Act violations with the U.S. Attorney in

Wisconsin and questioned closely Shiro Kashiwa, Assistant

Attorney General, Land & Natural Resources Division, about

the government’s failure to prosecute these violations. In partic-

ular, Congressman Reuss was concerned that his complaint about

past violations by a facility which had since shut down had not led

to prosecution:

Mr. REUSS: Take Citizen Reuss, for instance, who 15

months ago said, with respect to the Du Pont Co.—and

this is just one of the cases I filed—that they were dump-

ing red chemicals into Lake Superior.... Now, you

wouldn't call that a frivolous complaint; would you?

Mr. KASHIWA: Of course not. But in relation to that

particular plant, which we discussed a long time, / have

been informed that they have completely stopped dis-

charging .

Mr. REUSS: They completely stopped discharging

because they were afraid that someday the Department of

Justice might come to life and prosecute them. They

closed the plant last month.

Mr. KASHIWA. Yes.

Mr. REUSS: But what about the past pollution there?

.... [W]hy don’t you prosecute Du Pont for its flagrant

and open violation of the Refuse Act of 1899 up te and

including last month, when they stopped polluting because

they closed the plant?

Mercury Pollution and Enforcement of the Refuse Act of 1899

(Part |): Hearing Before the Conservation & Natural Resources

Subcomm. of the House Comm. on Gov't Operations, 92nd

Cong., Ist Sess., 37-38 (July 1, 1971) (emphasis added).

Based on its hearings,"’ the House Conservation & Natural

Resources Subcommittee issued a report on enforcement of the

Refuse Act. Enforcement of the Refuse Act of 1899, H. Rep.

10. The Report references several hearings held by the Subcommittee on the

enforcement and implementation of the Refuse Act. See the Subcommittee

hearings listed in note 7 supra

No. 1333, 92nd Cong., 2d Sess., (1972). The report found that

“after a slow start, the government’s enforcement of the Refuse

Act has been erratic, not ‘vigorous’.” /d. at 6 (upper case in

original). The Committee found that the government was

enforcing the Act only against egregious violators and that the

Justice Department's enforcement guidelines were frustrating the

efforts of enforcement-minded U.S. Attorneys."

Most upsetting to the Committee was that government policy

limited citizen involvement in enforcement. Citizen involvement

was deemed critical by the report which concluded “the provision

of the Refuse Act of 1899 specifying that one-half of any fine

imposed by a court against a Refuse Act violator be paid to the

citizen who gives information leading to the conviction has

greatly helped enforcement of the Act.” Jd. at 10 (upper case in

original). However, the Committee concluded to its dismay that

“the government's policy of relying principally on efforts to per-

suade polluters to obey the law and using litigation as a last resort

is undermining the role of citizens in enforcement of the [ Refuse |

Act.” Jd. at 12 (upper case in original)."* Finally, the Commit-

tee report emphasized the importance of strict enforcement of the

Refuse Act as a means of deterring generally future vio!ations.

11. The Department of Justice issued a guideline on June 13, 1970, which

directed U.S. attorneys to bring suit “against the ‘accidental or infrequent’

polluter, but not against any continuing industrial discharger who is complying

with ... a State or ... Federal Water Quality Administration” program.

“Guidelines for Litigation Under the Refuse Act (33 US. Code 407).~

reprinted in The Establishment of a National Industrial Wastes Inventory: Hrg.

before the Conservation and Natural Resources Subcomm. of the House

Comm. on Gov't Operations, 9\st Cong., 2nd Sess., 145 (Sept. 17, 1970),

despite the statutory command that United States attorneys “vigorously prose-

cute all offenders” of the Refuse Act. 33 U.S.C. § 413. “Asa result of congres-

sional and public objections, these guidelines were rcvised in April 1971 but still

restrict enforcement of the act.” Enforcement of the Refuse Act of 1899.

supra, at 4.

12. The report found that until 1971 the Justice Department failed even to

maintain records of citizen complaints urder the Refuse Act. According to the

report, this “failure will undoubtedly result in nonaction on many citizen com-

plaints of violations of the 1899 law.” Enforcement of the Refuse Act of 1899.

supra, at 13. Moreover, the Committee found that U.S. EPA guidelines for

12

The committee believes that the Corps, EPA, and the

Justice Department should stand ready to prosecute,

civilly or criminally, or both, any person or company

where there is sufficient evidence, whether obtained by a

citizen or by the Goternment, of violations of the Refuse

Act, and that these agencies should make it clear that this

is the Federal Government's policy. A violator who

knows that the Government's policy is not to sue, except

where there is ‘noncooperation’ by the violator, or nonen-

forcement of State or local antipollution laws, has less

incentive io take steps toward fuil compliance with the

law.

Id. at 23 (emphasis added).

B. Congressional hearings on predecessor bills to S. 2770 and the

evolution of the Clean Water Act citizen action for civil

penalties.

1. The 1970 bills & hearings.

Contemporaneously with congressional oversight hearings on

the implementation of the Refuse Act and the usefulness of qui

tam actions, Congress considered various proposals to revise dras-

tically federal water pollution control law. Concern for spurring

effective enforcement of the law by authorizing citizen enforce-

ment is a consistent thread woven through two years of hearings

and several bills.

The first bill pertinent here was introduced by Senator Muskie

in 1970 and included a citizen suit provision allowing citizens to

obtain declaratory and injunctive relief against violations of

ambient water quality standards or of plans developed to achieve

those standards. S. 3687, 91st Cong., 2d Sess. § 10(f) (1970),

enforcing the Refuse Act, U.S. EPA, “Guidelines on Water Pollution Enforce-

ment” 36 Fed. Reg. 13,203 (June 25, 1971), reprinted in Mercury Pollution

and the Enforcement of the Refuse Act, Part |. supra, at 926-28, further

undermined citizen participation in enforcement due to a preference for negotia-

tion during an administratively imposed, | 80-day notice period. Enforcement

of the Refuse Act of 1899, supra, at 14. The Committee found that such

negotiations often resulted in “verbal agreements with the polluters which are

kept largely secret and unavailable to public or congressional scrutiny” and

which were largely unenforceable. /d. at 4.

13

reprinted in Wter Pollution—1970 (Part 1): Hearings before

the Subcomm. on Air & Water Pollution of the Sen. Comm. on

Public Works, 91st Cong., 2d Sess. 41-42 (April 20, 21 & 27.

1970)."* S. 3687 also contained a “bounty” provision similar to

that found in the Refuse Act of 1899, which awarded one-tenth of

any penalty collccied by the federal government from a violator to

anyone giving information leading to the conviction. S. 3687,

supra, § 10(e)(7)(A), reprinted in 1970 Public Works Comm.

Hearings at 37. However, informant’s actions to collect their

share of a penalty where the government failed to prosecute (i.e.

qui tam actions) were not specifically authorized in the bill.

There was considerable discussion during the Committee hear-

ings of the citizen enforcement provisions of S. 3687 and of the

lack of a similar provision in the Nixon Administration’s bill,

S. 3471, S. 3471, 9ist Cong., 2d Sess. (1970), reprinted in 1970

Public Works Comm. Hearings at 77-102. See, e.g., 1970 Public

Works Comm. Hearings at 393 (opposition to citizen suit author-

ity by Nat’l Assoc. of Mfrs.’ (“This we feel is an unnecessary

additional enforcement wezpon which would only lead to harass-

ment of legitimate business and serve no justifiable end.”); /d. at

1347 (statement in support by Philip Douglas, Exec. Sec’y, Sport

Fishing Inst.) (“The penalties prescribed in S. 3687 would be a

positive deterrent to the potential polluter, no matter how strong

his financial backing, and we actively favor these provisions.”

(emphasis added) ); /d. at 1662 (statement in support by David

R. Zwick) (“[{S. 3867 in contrast to S. 3471] addresses the

problems of policing—avoiding the need for a massive Federal

pollution police force by providing citizens with an incentive to

participate in the enforcement process.”).

Mr. Zwick’s statement focused in large part on the need to

enact legislation which provided an “effective deterrent to pollu-

tion violations.” /d. at 1672. To achieve deterrence, Mr. Zwick

spoke in favor of the bounty provisions of S. 3687. Responding to

Mr. Zwick’s testimony, Senator Muskie noted his interest in

13. Hereinafter referred to as “/970 Public Works Comm. Hearings.”

14

revising the citizen suit provision of S. 3867 to make it even more

effective.

I especially like your attention to the problem of enforce-

ment. The ap»roach to this problem contained in S. 3687

is not one we were entirely happy with when we introduced

the legislation. We are in the process of discussing the

same problem in the mark-up sessions on the air pollution

legislation.

Id. at 1665.

Later during the same hearing, Senator Muskie elaborated on the

improvements he sought in the citizen enforcemeat authority:

What we would like to see the citizen suit provision accom-

plish is two things: (1) act as a prod on industry, not only

on those directly subject to suit but also on others, and;

(Z) act as a stimulant and, indeed, a guide to Government

enforcement program”

Id. at !667 (emphasis added).

This discussion reveals Senator Muskie’s concern that the citizen

suit provision as written in S. 3687 did not fully satisfy congres-

sional goals for such actions: it did not effectively grant citizens a

remedy which would result in general deterrence of illegal pollu-

tion. These comments of Senator Muskie are consistent with,

and demonstrate the significance of, his later remarks explaining

the final conference committee version of S. 2770 in which he

stated that citizen enforcement actions could be brought

“whether the violation be a continuous one, or an occasional or

sporadic one.” 118 Cong. Rec. 33700 (1972), 1972 Legislative

History at 179. However, S. 3687 never proceeded beyond the

hearing stage as Senator Muskie, his Subcommittee, and the

Congress turned its attention to enacting the Clean Air Act of

1970.

2. The 1971 bills & hearings.

Having enacted the Clean Air Act, Congress turned its atten-

tion in 1971 back to reworking federal water pollution control

15

laws. Again, Senator Muskie, Chairman of the Subcommittee

on Air & Water Pollution of the Committee on Public Works,

took the lead. Senator Muskie introduced new legislation which,

like the 1970 bill, included a citizen suit provision which autho-

rized only declaratory and injunctive relief. S. 523, §11(i),

reprinted in Water Pollution Control Legislation: Hearings

before the Subcomm. on Air & Water Pollution of the Sen.

Comm. on Public Works, 92 Cong., Ist Sess. 193, 230-31

(1971)."* However, S. 523 did not contain a bounty provision for

informants who gave information leacing to convictions for viola-

tions, an omission which was addressed later in the hearings. As

in 1970, there was a competing bill supported by the Nixon

Administration, but this time its bill included a citizen suit provi-

sion. S. 1014 (proposing new § 10(k) to the existing Federal

Water Pollution Control Act), reprinted in 1971 Public Works

Comm. Hearings, 306, 329-30. Neither bill authorized citizen

Suits to assess monetary penalties against violators.

In his opening statement, Senator Muskie acknowledged that

there were some problems identified in previous hearings which

were not addressed by the pending bills. He listed four examples

of these problems including the need for “[p]rovisions for citizen

Suits to stop violations of the program under the Refuse Act of

1899.” Jd. at 2.

In the intervening period between the Muskie subcommittee’s

1970 and 1971 hearings, many of the hearings and reports on

enforcement of the Refuse Act of 1899 discussed earlier occurred.

Not surprisingly, then, the omission of an informants’ bounty

provision from S. 523 did not escape attention during the hear-

ings. In fact, it provoked a broader discussion of the need to

provide citizens with an action to assess penalties where the gov-

ernment failed to do so. As in the previous hearings, David R.

Zwick addressed this issue most thoroughly. He specifically

asked the subcommittee to amend the bills to provide a qui tam-

like action in order to deter violations:

14. Hereinafter referred to as “/97/ Public Works Comm. Hearings ~.

16

The most important addition the subcommittee could

make to the citizen suit provision, and to the water pollu-

tion enforcement scheme in general, would be providing in

the statute for a qui tam style action—that is, an action by

a citizen to collect a fine due him when the Government

does not choose to pursue the case. Such a provision is

essential for several reasons. First, the only workable

deterrent against pollution is the knowledge that a pen-

alty—stiff enough to make avoiding pollution cheaper

than polluting—will be levied for past violations. If a

polluter knows that the only remedy citizens have against

him is an injunction to take effect in the future, there is

nothing to discourage him from polluting until he is

enjoined. ...\Insummary, I believe that the statutory gui

tam action is an absolutely indispensable element in any

effective citizen suit package.

Id. at 727-28 (emphasis added).

Senator Eagleton, Vice-Chairman of the Air & Water Pollu-

tion Subcommittee, was chairing that day’s hearing, and he dis-

cussed with Mr. Zwick the need for citizen actions to assess

penalties. /d. at 729-31. In that exchange, Senator Eagleton

suggested that the omission of the informants’ bounty provision

from S. 523 was an oversight, id. at 729, and pressed Mr. Zwick

on the kinds of penalties which citizens should be authorized to

seek.

Senator EAGLETON: In terms of fines, how do you

view them, civil or criminal?

Mr. ZWICK: 1 would like to see them civil. I think that

would—

Senator EAGLETON: With a double damages provi-

sion, a la Sherman perhaps?

Mr. ZWICK: Well, rather than damages, which are |

think one of the very murky things in the environmental

area, | think the basic notion should be one of

deterrence ....

Id. at 731 (emphasis added).

17

Finally, Senator Philip Hart, Chairman of the Senate Com-

merce Committee, which held the Senate hearings on the Refuse

Act, appeared before the Subcommittee to urge the inclusion of a

qui tam-type citizen suit action in the legislation as a way to

integrate it with citizen enforcement of the Refuse Act. /d. at

1019-21. In his remarks, Senator Hart referred to Congressman

Reuss’s efforts in the House to encourage citizen action to enforce

the Refuse Act. /d. at 1020.

The 1971 hearings reflect Congress’ appreciation that qui tam

actions under the Refuse Act were not proving to be an effective

remedy.'® Also, these hearings demonstrate congressional under-

standing that the addition of citizen suit penalty authority would

enhance deterrence of violations, both by the polluter being sued

and by others. Therefore, it is not surprising the Senate Public

Works Committee’s draft print of a revised bill in response to

these hearings included, for the first time, the language authoriz-

ing citizen suits to assess civil penalties—the identical language

later included in both S. 2770 and H. 11896 and enacted into law

_ as § 505(a) of the Act. Comm. on Public Works, Federal Water

Pollution Control Amendments 44 (July 2, 1971) (staff working

print) reprinted in 1971 Public Works Comm. Hearings 1595

(General Appendix, Sec. II).

This print of the legislation was circulated widely and numer-

ous responses are included in the record of the 1971 hearings.

Only two of these responses focused on the addition of authority

to assess civil penalties to the citizen suit provision. The

National Association of Electric Companies supplied for the

15. All the citizen gui tam actions filed in response to the attention focused

upon this potential action under the Refuse Act were dismissed for failure to

state a claim upon which relief could be granted, the courts holding that Con-

gress did not confer such a cause of action on citizen informants. Anderson v

Norfolk & Western Railway, 349 F.Supp. 121 (W.D.Va. 1972); Bass Anglers

Sportsman's Soc. of America v. Scholze Tannery, Inc., 329 F.Supp. 339

(D.Tenn. 1971); Bass Anglers Sportsman's Soc. of America v. U.S. Plywood-

Champion Papers, Inc., 324 F Supp. 302 (S.D.Tex. 1971); Enquist v. Quaker

Oats Co.,. 327 F.Supp. 347 (D.Neb. 1971); U.S. ex rel. Mattson v. Northwest

Paper Co., 327. F Supp. 87 (D.Minn. 1971); U.S. v. Florida-Vanderbilt Devel-

opment Co., 326 F.Supp. 289 (D.Fla. 1971).

18

record a marked-up copy of the working print in which the civil

penalty authority is crossed out, but no explanation of their

response is included. /97/ Public Works Comm. Hearings at

1754. The American Iron & Steel Institute also submitted a

marked-up copy of the working print for the record which

included a marginal note next to the civil penalty authority

reading,

Section (a)(2) of the Committee Print goes well beyond

the injunctive relief contemplated at the Committee hear-

ings relating to S. 523 and S. 1014. The Print now being

considered would authorize the district courts to impose

the same harsh and unrealistic civil penalties [in a citizen

suit] permitted in Section 309. If it is the will of the

Congress that Cit.zen Suits are essential to the Federal

water pollution control program, it would appear sufficient

that the court be given the power to enjoin pollution at its

source. The civil penalties should be eliminated.

Id. at 1656.

Congress did not heed the pleas of these groups and the bills

introduced that fall in both the Senate and the House of Repre-

sentatives (S. 2770 and H.R. 11896) included unchanged the

provisions from the Committee draft authorizing courts hearing

citizen suits to assess civil penalties for the past violations.

As this history indicates, Congress granted the federal district

courts discretion to assess civil penalties in citizen suits out of

frustration with the federal government's failure to enforce effec-

tively the Refuse Act penalty provision. Congress recognized

that assessing penalties for past violations was an essential com-

ponent of abating pollution by deterring, both specifically and

generally, future violations of the law. Thus, Congress created a

qui tam-like action in which citizen plaintiffs could effectuate

general and specific deterrence by suing for civil penalties. Peti-

tioner’s interpretation of § 505(a) ignores this history and would

defeat those congressional purposes by denying courts the discre-

tion to assess civil penalties in an entire class of cases, regardless

of whether it would serve the general and specific deterrence goals

of the Act.

19

Il. The broad deterrent purposes of the Clean Water Act would

be thwarted by a complicated jurisdictional bar to judicial

discretion to assess civil penalties in the absence of continu-

ing violations.

As the foregoing discussion of the early history of the Act

reveals, Congress granted citizens authority to seek civil penalties

out of frustration with the lack of government enforcement and in

recognition of the need for strong citizen enforcement to deter

future violations of the Act. Therefore, Congress deliberately

provided citizens with an efficient remedy, based largely on self-

reported violations, to assist in abating pollution." However,

Congress tempered the sweeping authority granted citizens to

16. A comprehensive study of citizen suits under the Clean Water Act

concluded that they have a significant effect in deterring violations. Environ-

mental Law Institute, Citizen Suits: An Analysis of Citizen Enforcement

Actions Under EPA-Administered Statutes v-\\ (Sept. 1984) (“[T]he study

suggests that the current wave of citizen actions could be a significant general

deterrent ... The scope and effectiveness of the publicity generated by recent

citizen enforcement seems likely to provide general deterrence.”). The report

concluded “that the system of citizen enforcement is currently operating as

Congress intended: to provide (1) a goad and (2) an alternative to government

enforcement.” /d. at vii. It suggested that the availability of civil penalties in

citizen actions—the “penalty engine”——was a major motivation for these suits .

and suggested that amending other federal environmental laws to authorize

citizen actions to recover civil penalties would encourage citizen enforcement of

them. /d., at v-J.

Congress recently reaffirmed its approval of citizen actions for civil penalties

by expanding the jurisdiction of district courts to assess civil penalties in citizen

suits brought under the Resource Conservation and Recovery Act (RCRA),

The Hazardous and Solid Waste Amendments of 1984, Puo. Law No. 98-616,

§ 401(b), 98 Stat. 3221, 3269, to be codified at 42 U.S.C. § 6972, reprinted in

1984 U.S. Code Cong. & Ad. News, and the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA), Superfund Amend-

ments and Reauthorization Act of 1986, Pub. Law. No. 99-499, § 206, 100 Stat.

1613, 1703-05, to be codified at 42 U.S.C. § 9659, reprinted in 1986 U.S. Code

Cong. & Ad. News (Dec. 1986 Advance ed.), and did so by using the same

language as CWA § 505(a). Indescribing the 1986 amendments of CERCLA,

Sen. Baucus (the author of the civil penalty amendment) explained his proposal!

by reference to the Environmental Law Institute study of Clean Water Act

citizen suits. Sen. Baucus concluded, as did the Environmenta! Law Institute

report, that “the system of citizen enforcement is currently operating as Con-

gress intended” and that “the scope and eTectiveness of the publicity generated

20

enforce against a// violations of certain provisions of the Aci,

regardless of their significance, by granting federal district courts

discretion in fashioning the appropriate relief. See Weinberger v.

Romero-Barcelo, 456 U.S. 305, 318 (1982) (courts have discre-

tion in fashioning equitable relief for violations of the Act “to

order relief that will achieve compliance with the Act.” (empha-

sis in original) ).

While Congress intended that the determination of violations

in citizen actions be simple and expeditious,"’ the factual inquiry

necessary to determine the appropriate remedy is significantly

more complicated." Petitioner would have this Court require

that district courts make complicated factual findings on many of

the remedial-type considerations specified by Congress as a juris-

dictional matter in determining whether a citizen action for pen-

alties may proceed. Moreover, where, based on this complicated

inquiry, continuing violations were found not to exist, Petitioner

would bar courts from serving the deterrent purposes of the Act

by recent citizen enforcement seems likely to act as a general deterrent.” | 3!

Cong. Rec. $12026 (daily ed. Sept. 24, 1985).

17. See Sen. Rep. No. 414, supra, at 64, 65, 79, 80 & 81, 1972 Legislative

History at 1482, 1483, 1497, 1498 & 1499.

18. Inthe recent amendments to the Act, Congress specifically listed several

considerations to be taken into account by district courts in determining appro-

priate civil penalties for violations of the Act. Section 313 of the Water Quality

Act of 1987, Pub. Law No. 100-4, 101 Stat. 7, 45, reprinted in 1987 U.S. Code

Cong. & Ad. News (March 1987 advance ed.) provides:

Section 309(d) is amended by adding at the end thereof the following:

“In determining the amount of a civil penalty the court shall consider the

seriousness of the violation or violations, the economic benefit (if any)

resulting from the violations, any good-faith efforts to comply with the

applicable requirements, the economic impact of the penalty on the

violator, -nd such other matters as justice may require... .”

The considerations listed by Congress are all specific factors relevant to deter-

mining the penalty amount necessary to deter, both generally and specifically,

future violations. See EPA, “Clean Water Act Civil Penalty Policy” (Feb. 11,

1986). EPA, “Civil Penalty Policy” [Federal Laws] Env’ Rep. (BNA)

41:2991 (June |, 1984) discussed in detail by the court below, Chesapeake Bay

Foundation v. Gwaltney of Smithfield, Ltd., 611 F Supp. 1542, 1556-57 (E.D.

Va. 1985). In general, these policies separate the inquiry into three phases: (1)

calculating the statutory maximum penalty; (2) determining the “primary

deterrence” figure: and (3) considering other factors.

0 SOT ee

21

by awarding civil penalties, no matter how egregious the admitted

violations.

The specific facts of this case, as set forth in detail by the

district court, demonstrate precisely how such a jurisdictional bar

would frustrate enforcement of the Act. All of the mitigating

factors cited by Petitioner to excuse its admitted violations of the

Act, Pet. Brief at pp. 4-6, p. 9 & p. 21 were thoroughly considered

by the district court in determining the appropriate civil penalty.

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

supra, 611 F.Supp. at 1556-65. The court found unpersuasive

Gwaltney’s attempts iv “trivialize[] the seriousness of its fecal

coliform violations,” id. at 1560, it found that Gwaltney dealt

with the known violations “in an exceedingly unconcerned man-

ner” with an attitude that “borders on benign neglect,” id. at

1561, and it increased the penalty because “Gwaltney’s lackadai-

sical approach in correcting a problem that posed risks . . . to both

human health and aquatic life should not be countenanced .. . .”

Id.

Petitioner does not reiterate its many excuses for the admitted

violations before this Court to suggest that the district court

abused its discretion in fashioning a remedy. Instead, Petitioner

asks this Court to bar the exercise of such discretion in all citizen

actions where the violations have ceased by the time the com-

plaint is filed. Petitioner, and others clever enough to await the

filing of a citizen suit notice and cease violating the Act prior to

the filing of the complaint, would escape punishment. The deter-

rent purposes of the Act and the integral role of citizen suits in

abating pollution would be s.gnificantly undermined.

22

Ill. Conclusion

Therefore, the Court should affirm the judgment of the U.S.

Court of A »peals for the Fourth Circuit.

Respectfully submitted,

CEE EEE H ED

MARK VAN PUTTEN*

NORMAN L. DEAN, JR.

NATIONAL WILDLIFE

FEDERATION

1412 Sixteenth St., N.W.

Washington, D.C. 20036 —

(202 )637-3736

Attorneys for Amici Curiae

Nationa! Wildlife Federation**

Dated: May 27, 1987

* Counsel of Record

** James K. Milliken, a third year law student at the Univer-

sity of Michigan, assisted in the preparation of this brief.

~

‘

+)