Joint Appendix — Friends of Earth v. Laidlaw Environmental Services
Supreme Court brief2000
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IN THE
Supreme Court of The United States
FRIENDS OF THE EARTH. et al..
Petitioners.
Vs
LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC. .
Respondent
On Writ of Certiorari to the United States
Court of Appeals for the Fourth Circuit
JOINT APPENDIX
Bruce J. Terris* Ralph M. Mellon*
Carolyn Smith Pravlik Donald A. Cockrill
Monica B. Wagner Ogletree. Deakins. Nash.
Terris, Pravlik & Millian, LLP Smoak & Stewart
1121 12th Street. N.W. 300 North Main Street
Washington, D.C. 20005 P.O. Box 2757
(202) 682-2100 Greenville, SC 29602
Counsel for Petitioners (864)271-1300
Counsel for Respondent
*Counsel of Record
a
PETITION FOR CERTIORARI FILED NOVEMBER 9, 1998
CERTIORARI GRANTED MARCH 1, 1999
‘
TABLE OF CONTENTS
Relevant Docket Entries from District Court Docket ............... l
Third Amended Complaint and Request for Injunctive Relief ...... 28
Answer to Amended Complaint .. 0... ccc ce eee eee 42
NE NEE 6c kc cccnvnsanddnndelesene essence aansasaeks 53
Excerpts from Volume V of the 1993 Trial Transcript ............ 66
Complaint in South Carolina Department of Health and
Environmental Control v. Laidlaw Environmental Services (TOC), Inc.,
Court of Common Pleas, No. 92-CP-42-1429 ................... 72
Consent Decree in South Carolina Department of Health and
Environmental Control v. Laidlaw Environmental Services (TOC), Inc.
Court of Common Pleas, No. 92-CP-42-1429 20.0... 02000 eee, 76
4/7/95 Findings of Fact, Conclusions of Law and Order ........... 84
1/22/97 Findings of Fact, Conclusions of Law and Order ......... 138
OY GUE 5 0.000 cnccce0snsceésebinkeseneateesenene 198
Relevant Entries from the Court of Appeals Docket ............. 200
[RELEVANT DOCKET ENTRIES FROM]
U. S. District Court
District of South Carolina (Columbia)
CIVIL DOCKET FOR CASE #: 92-CV-1697
Friends of the Earth, et al v. Laidlaw Environ
Filed: 06/12/92
Assigned to: Judge Joseph F. Anderson, Jr. Jury demand:
Plaintuff
Demand: $0,000 Nature of Suit: 893
Lead Docket: None Jurisdiction: Federal
Question
Dkt# in other court: None
Cause: 33:1365 Environmental Matters
6/12/92 | COMPLAINT; FILING FEE $ 120. 00
RECEIPT # 63831 Scheduling order due by
9/14/92 Service due by 7/12/92 for Laidlaw
Environ (swil) [Entry date 06/16/92]
7/1/92 4 MOTION by defendant Laidlaw Environ to
dismiss (swil) [Entry date 07/07/92]
7/1/92 5 MEMORANDUM by defendant Laidlaw
Environ in support of [4-1] motion to dismiss
(swil) [Entry date 07/07/92]
7/13/92 -- Motion hearing re: [4-1] motion to dismiss at
10:00 7/23/92 (swil)
7/24/92 8 AMENDED COMPLAINT by plaintiff Friends
of the Earth, plaintiff CLEAN, Inc. . (Answer
due 8/3/92 for Laidlaw Environ ) amending
8/4/92 10
8/7/92 11
10/6/92 20
10/6/92 21
10/23/92 26
10/26/92 27
[1-1] complaint adding plaintiff Sierra Club
(swil)
MOTION by defendant Laidlaw Environ to
dismiss, and to strike [8-1] amended complaint
(swil)
MEMORANDUM by defendant Laidlaw
Environ in support of [9-1] motion to dismiss,
[9-2] motion to strike [8-1] amended complaint
(swil)
MOTION by defendant Laidlaw Environ to
dismiss, and to strike [8-1] amended complaint
(swil) [Entry date 08/10/92]
MOTION by plaintiff Friends of the Earth,
plaintiff CLEAN, Inc. , plaintiff Sierra Club for
preliminary injunction (swil)
BRIEF by plaintiff Friends of the Earth,
plaintiff CLEAN. Inc. . plaintiff Sierra Club in
support of motion for preliminary injunction.
(swil)
SUPPLEMENTAL MEMORANDUM by
defendant Laidlaw Environ in support of [11-1]
motion to dismiss, [1 1-2] motion to strike [8-1]
amended complaint (jhal) [Entry date 1 1/02/92]
Brief by plaintiff Friends of the Earth, plaintiff
CLEAN, Inc. . plaintiff Sierra Club in
opposition to [11-1] motion to dismiss, [11-2]
motion to strike [8-1] amended complaint (jhal)
tv
10/30/92 28
11/3/92 31
11/16/92 32
11/19/92 --
11/20/92 --
12/3/92 35
{Entry date 11/02/92}
REPLY by defendant Laidlaw Environ to
[27-1] opposition memorandum (jhal) [Entry
date 1 1/09/92}
-MEMORANDUM by defendant Laidlaw
Environ in opposition to [20-1] motion for
preliminary injunction (jhal) [Entry date
11/09/92}
REPLY BRIEF by plaintiff Friends of the
Earth, plaintiff CLEAN, Inc. , plaintiff Sierra
Club in support of [20-1] motion for
preliminary injunction (jhal) {Entry date
11/17/92]
Motion hearing re: [20-1] motion for
preliminary injunction, [11-1] motion to
dismiss, [11-2] motion to strike [8-1] amended
complaint. (JFA,jr/gs). Motion for Prel.
Inj. cont'd until 11/20/92. _Deft's motion to
dismiss, denied. Deft's motion to strike,
denied. (jhal)
Motion hearing re: [20-1] motion for
preliminary injunction. (JFA,jr/gs).
Court hears argument and takes under
advisement. Written Order to be entered.
(bwil)
SUPPLEMENTAL MEMORANDUM by
plaintiff Friends of the Earth, plaintiff CLEAN,
Inc. , plaintiff Sierra Club in support of [20-1]
12/14/92 37
2/26/93 43
2/26/93 44
3/11/93 47
4/2/93 52
motion for preliminary injunction (jhal)(Entry
date 12/16/92]
ORDER denying [20-1] motion for
preliminary injunction, denying [1 1-1] motion
to dismiss. denying [11-2] motion to strike
(8-1 ] amended complaint, denying [9-1] motion
to dismiss, denying [9-2] motion to strike [8-1]
amended complaint and granting plaintiffs’
motion made orally at the hearing on 11/19 to
add Sierra Club as a co-plaintiff (signed by
Judge Joseph F. Anderson Jr. ) (jhal) [Entry
date 12/16/92]
MOTION by defendant Laidlaw Environ for
summary judgmentas to plaintiff Friends of the
Earth (jhal) [Entry date 03/01/93}
MEMORANDUM by defendant Laidlaw
Environ in support of [43-1] motion for
summary judgmentas to plaintiff Friends of the
Earth (jhal) [Entry date 03/01/93)
AMENDED MEMORANDUM by defendant
Laidlaw Environ in support of [43-1] motion
for summary judgment as to plaintiff Friends of
the Earth substituting memorandum in support
filed 2/26/93 (jhal) [Entry date 03/24/93]
RESPONSE in opposition by plaintiff Friends
of the Earth to defendant's [43-1] motion for
summary judgment as to plaintiff Friends of the
Earth (jhal) [Entry date 04/10/93]
4/12/93 54
4/12/93 55
4/12/93 54
4/16/93 57
4/23/93 59
AMENDED COMPLAINT by plaintiff Friends
of the Earth, plaintiff CLEAN, Inc. , plaintiff
Sierra Club . (Answer due 4/22/93 for Laidlaw
Environ ) Service due by 5/12/93 for Laidiaw
Environ amending [8-1] amended complaint.
(jhal) [Entry date 04/13/93]
REPLY MEMORANDUM by plaintiff Friends
of the Earth, plaintiff CLEAN, Inc. , plaintiff
Sierra Club in support of [50-1] cross motion
to compel defendant to designate witnesses
pursuant to plaintiff's deposition notice. for
sanctions (jhal) [Entry date 04/13/93]
MOTION/Request by plaintiff Friends of the
Earth, plaintiff CLEAN, Inc. , plaintiff Sierra
Club for injunctive relief incorporated into
amended complaint filed 4/12/93, doc #54
(jhal) [Entry date 04/13/93]
REPLY by defendant Laidlaw Environ to
response to [43-1] motion for summary
judgment as to plaintiff Friends of the Earth
(jhal) (Entry date 04/26/93]
MOTION by defendant Laidlaw Environ to
dismiss or in the alternative, to strike plaintiffs’
newest amended complaint (jhal) [Entry date
04/30/93]
MEMORANDUM by defendant Laidlaw
Environ in support of [58-1] motion to dismiss
or in the alternative, to strike plaintiffs’ newest
amended complaint (jhal) [Entry date 04/30/93}
5/14/93 61
6/29/93 71
6/30/93 --
6/30/93 --
7/9/93 77
10/26/93 --
RESPONSE by plaintiff Friends of the Earth,
plaintiff Sierra Club in opposition to [58-1]
motion to dismiss or in the alternative. to strike
plaintiffs’ newest amended complaint. (ghay)
[Entry date 05/24/93]
SUPPLEMENTAL MEMORANDUM by
plaintiffs Friends of the Earth, CLEAN, Inc. ,
Sierra Club in opposition to [43-1] motion for
summary judgmentas to plaintiff Friends of the
Earth. Exhibits to Supplemental Memorandum
attached as Voiumes | and II. (ghay)
Motion hearing re: [43-1] motion for summary
judgment as to plaintiff Friends of the Earth
Motion hearing held (JFA.JR/Jack Clarke).
Motion for Summary Judgment denied. (bwil)
Minute entry: denying [43-1] motion for
summary judgment as to plaintiff Friends of the
Earth (bwil)
SUPPLEMENTAL MEMORANDUM by
defendant Laidlaw Environmental in support of
[58-1] motion to dismiss or in the alternative, to
strike plaintiffs’ newest amended complaint.
(ghay) [Entry date 07/13/93]
Bench trial held before Judge Joseph F.
Anderson Jr. / Gary Smith: as to the issue of
the factual dispute on delingent prosecution:
Court grants defendant's Oral Motion for
Protective Order and plaintiff to provide the
appropriate witness fee for subpoenaes issued to
10/27/93 --
10/28/93 --
10/29/93 --
11/9/93 86
11/23/93 87
11/23/93 88
defendant. Opening statements:
Witnesses/Exhibits. (ydav) [Entry date
10/27/93}
Bench trial continues before Judge Joseph F.
Anderson Jr. /gary smith.
Witnesses/Exhibits. _ Plaintiff's oral
motion for judgment as a matter of law as to
issue of factual dispute on diligent
prosecution - Denied. (nhar)
Bench trial continued before Judge Joseph F.
Anderson Jr. /Gary Smith: Witnesses/Exhibits.
Defendant's Oral Motion for judgment as a
matter of law--Denied. (ydav) [Entry date
10/29/93]
Bench trial continued before Judge Joseph F.
Anderson Jr. /Gary Smith: Witnesses. Trial
continued to November 29, 1993. (ydav)
[Entry date 11/01/93]
Transcript of Gary Smith of non-jury trial
before Honorable Joseph F. Andrson, Jr. , in
Columbia on 10/26/93 (Volume I). (bwil)
Transcript (Volume III) filed by Gary N.
Smith of proceedings on 10/28/93 in
Columbia - Non-Jury Trial. (bwil)
Transcript (Volume IV) filed by Gary Smith of
proceedings on 10/29/93 in Columbia -
Non-Jury Trial. (bwil)
11/29/93 9]
11/29/93 92
11/29/93 --
11/30/93 93
11/30/93 --
12/1/93 --
MOTION by plaintiff Friends of the Earth,
plaintiff CLEAN, Inc. , plaintiff Sierra Club to
amend [54-1] amended complaint (nhar)
MEMORANDUM by plaintiff Friends of the
Earth, plaintiff CLEAN, Inc. , plaintiff Sierra
Club in support of [91-1] motion to amend
[54-1] amended complaint with proposed Third
Amended Complaint attached as Exhibit 1.
(nhar)
Bench trial held before Judge Joseph F.
Anderson Jr. /gary smith and jack clarke -
continues. Defendant's witnesses (nhar)
Transcript (Volume V) of proceedings held
11/29/93 in Columbia before Judge Anderson
(Non-Jury trial). (ghay)
Bench trial continued before Judge Joseph F.
Anderson Jr. /Gary Smith and Jack Clarke.
WITNESSES/EXHIBITS. Certain portions of
testimony sealed. (bwil) [Entry date 12/02/93]
Bench trial completed before Judge Joseph F.
Anderson Jr. /Gary Smith and Jack Clarke.
WITNESSES/EXHIBITS. Certain portions of
testimony sealed. Clerk requests counsel for
plaintiff to file depositions which were used for
impeachment purposes at trial. Counsel will
file after trial with updated exhibit list for the
record. Court takes under advisement and
directs counsel to submit proposed Findings of
Fact and Conclusions of Law (to be
12/1/93 94
12/1/93 95
12/1/93 96
12/1/93 97
12/15/93 100
1/19/94 102
mailed on or before January 3. 1994 - 75-page
limit. Court will hear oral arguments after
submissions. (bwil) [Entry date 12/02/93]
Transcript (Volume II) of proceedings held
10/27/93 in Columbia before Honorable Joseph
F. Anderson, Jr. - Non-Jury Trial. (bwil)
{Entry date 12/02/93]
Transcript (Volume VI) of proceedings on
11/30/93 in Columbia before Honorable
Joseph F. Anderson, Jr. - Non-Jury trial.
(Excluding Sealed Portions). (bwil) [Entry
date 12/02/93]
Transcript (SEALED) - VOLUME VI -
proceedings on 11/30/93 in Columbia before
Honorable Joseph F. Anderson, Jr. -
Non-Jury trial. (bwil) [Entry date 12/02/93]
Transcript (SEALED) - Volume VII -
proceedings held 12/1/93 in Columbia before
Honorable Joseph F. Anderson, Jr. -
Non-Jury trial. (bwil) [Entry date 12/02/93]
RESPONSE by defendant Laidlaw
Environmental in opposition to [91-1] motion
to amend [54-1] amended complaint. (ghay)
[Entry date 12/16/93]
REPLY by plaintiffs Friends of the Earth.
CLEAN, Inc. to defendant's [100-1]
opposition response to plaintiffs’ motion to file
3rd amended complaint. (ghay)
1/24/94 --
1/24/94 --
2/10/94 --
2/10/94 --
2/10/94 105
3/28/94 106
Bench trial held before Judge Joseph F.
Anderson Jr. /Gary Smith. Oral arguments on
the mertis. Court takes under advisement and
will issue written order. Plaintiff's motion to
amend complaint. under advisement. (bwil)
Minute entry: [91-1] motion to amend [54-1]
amended complaint taken under advisement
(bwil)
Motion hearing re: [103-1] motion to hold open
the record until 3/4/94. Court grants motion
to hold open record until 3/4/94 and further
directs parties to submit proposed questions
which shall be submitted to EPA in the event
court decides to ask EPA to submit amicus
brief. | Proposed questions to be submitted
within ten days. (bwil)
Minute entry: granting [103-1] motion to hold
open the record until 3/4/94. (bwil)
SUPPLEMENTAL MEMORANDUM by
defendant Laidlaw Environ in support of [58-1]
motion to dismiss or in the alternative, to strike
plaintiffs’ newest amended complaint. (ghay)
(Entry date 02/11/94] [Edit date 02/11/94]
ORDER mooting [62-1] motion for leave to file
Supplemental Memorandum in Support of its
Motion for Summary Judgment as to Plaintiff
Friends of the Earth: mooting [58-1] motion to
dismiss or in the alternative, to strike plaintiffs’
newest amended complaint; mooting [54-1]
10
3/29/94 107
4/22/94 108
5/31/94 109
6/6/94 110
7/7/94 111
7/8/94 112
motion for injunctive relief. (signed by Judge
Joseph F. Anderson Jr. ) eod mid 3/28/94.
(ghay)
ORDER requesting EPA file amicus curiae
brief in this action. Copy of letter to
Department of Justice requesting brief attached
to this order. (signed by Judge Joseph F.
Anderson Jr. ) eod mid 3/29/94. (ghay)
MEMORANDUM bby plaintiff Friends of the
Earth, plaintiff CLEAN, Inc. . plaintiff Sierra
Club in Opposition to defendant's motion to
dismiss. (bwil) [Entry date 04/25/94]
BRIEF by United States of America as Amicus
Curiae. (ghay)
ORDER: Defendant's reply brief due for
6/27/94 to Government's amicus curiae
brief. Plaintiff's shall file their reply
memorandum within 30 days of defendant's
response. (signed by Judge Joseph F.
Anderson Jr. ) eod mld 6/7/94. (ghay) [Entry
date 06/07/94]
SECOND SUPPLEMENTAL
MEMORANDUM by plaintiffs Friends of the
Earth In Opposition to defendant's [58-1] motion
to dismiss. (ghay) [Entry date 07/09/94]
REPLY by defendant Laidlaw Environmental
to [109-1] brief amicus curiae of U.S.A.
(ghay) [Entry date 07/18/94]
7/22/94 114
7/25/94 115
8/8/94 116
8/15/94 117
8/18/94 118
8/24/94 119
9/19/94 120
REPLY by U.S. as amicus curiae to defendant
Laidlaw's response [112-1] tothe U. S. 's brief.
(ghay) [Entry date 07/25/94]
REPLY by defendant Laidlaw Environ to
plaintiffs’ [111-1] second supplemental
Opposition memorandum to defendant's motion
to dismiss. (ghay) [Entry date 07/27/94]
ORDER Plaintiffs Reply to Response to
Motion to dismiss to be filed by 8/15/94.
(signed by Judge Joseph F. Anderson Jr. ) eod
mld 8/9/94. (ghay) [Entry date 08/09/94]
REPLY by plaintiff Friends of the Earth,
plaintiff CLEAN, Inc. in response to
defendant's submission regarding defendant's
mercury limitation re: [111-1] opposition
memorandum. (ghay)
REPLY MEMORANDUM by plaintiff Friends
of the Earth, plaintiff CLEAN, Inc. to
submissions of EPA and Defendant regarding
economic benefit. (ghay) [Entry date
08/19/94]
SUPPLEMENTAL REPLY by defendant
Laidlaw Environmental to [109-1] brief of U.
S. as amicus curaie. (ghay) [Entry date
08/25/94]
REPLY by plaintiff Friends of the Earth,
plaintiff CLEAN, Inc. , plaintiff Sierra Club to
defendant's [119-1] reply to DOJ amicus brief
12
OPE on.
9/30/94 12]
10/21/94 122
11/3/94 123
11/4/94 124
11/14/94 126
12/5/94 128
and response to plaintiff's reply brief. (ghay)
RESPONSE by defendant Laidlaw Environ in
opposition to plaintiffs’ brief regarding the ICI
Americas decision. (ghay) [Entry date
10/04/94]
THIRD SUPPLEMENTAL MEMORANDUM
by plaintiffs Friends of the Earth, CLEAN, Inc..,
and Sierra Club in opposition to defendant's
[58-1] motion to dismiss or in the alternative, to
strike plaintiffs’ newest amended complaint.
(ghay)
SUPPLEMENTAL MEMORANDUM by
defendant Laidlaw Environ in support of its
[59-1] support memorandum, re: its [58-1]
motion to dismiss or in the alternative, to strike
plaintiffs’ newest amended complaint. (ghay)
[Entry date 11/07/94]
REPLY by defendant Laidlaw Environ to
plaintiff's third supplemental [122-1] opposition
memorandum re: defendant's motion to dismiss.
(ghay) [Entry date 11/07/94]
REPLY MEMORANDUM by plaintiff Friends
of the Earth, plaintiff CLEAN, Inc. to
defendants' supplemental [123-1] support
memorandum re: defendants' motion to dismiss.
(ghay) [Entry date 11/17/94]
MEMORANDUM by plaintiff Friends of the
Earth, plaintiff CLEAN, Inc. regarding res
13
12/5/94 129
12/12/94 130
3/21/95 131
4/7/95 133
4/14/95 135
judicata and collusion. (ghay)
RESPONSE by defendant Laidlaw Environ in
opposition to [125-1] Court's Letter dated
11/9/94. (ghay) [Entry date 12/06/94}
MEMORANDUM by amicus SCDHEC
responding to issues raised in the court's letter
of 11/9/94. (ghay) [Entry date 12/15/94]
NOTICE of Subsequent Precedent by plaintiff
CLEAN, Inc. , plaintiff Friends of the Earth.
Re: Public Interest Research Group of NJ v.
Magnesium Elektron, Inc. (ghay)
REPLY by defendant Laidlaw Environ to
plaintiffs'[131-1] notice of subsequent
precedent. (ghay) [Entry date 03/28/95]
FINDINGS OF FACT AND CONCLUSIONS
OF LAW. Plaintiffs' citizen suit allowed to
proceed beyond the threshold limitation of
section 505(b)(1)(B). | This order does not
address the merits of the plaintiffs’ action. A
separate scheduling order will be entered for
substantive motions and a trial date for the
remaining issues in the case. (signed by Judge
Joseph F. Anderson Jr. ) eod mid 4/7/95.
(ghay)
ORDER granting plaintiffs’ [91-1] motion to
amend [54-1]. amended complaint, mooting
defendant's [58-1] motion to dismiss or in the
alternative, to strike plaintiffs’ second amended
14
5/23/95 139
5/23/95 140
5/30/95 14]
5/30/95 143
5/30/95 144
5/30/95 145
complaint. (signed by Judge Joseph F.
Anderson Jr. eod mid 4/17/95. (ghay) [Entry
date 04/17/95]
MOTION by plaintiff Sierra Club, plaintiff
CLEAN, Inc. , plaintiff Friends of the Earth for
partial summary judgment in favor of
plaintiffs. (ghay) [Entry date 05/24/95]
MEMORANDUM by plaintiff Sierra Club,
plaintiff CLEAN, Inc. . plaintiff Friends of the
Earth in support of [139-1] motion for partial
summary judgment in favor of plaintiffs.
(ghay) [Entry date 05/24/95]
MOTION by SC State Chamber of Commerce
and SC Textile Manufacturers Assn. for
Julianne Farnsworth, Esq. to file amicus brief.
Proposed amicus brief attached to motion.
(ghay) [Entry date 05/31/95]
MOTION by defendant Laidlaw Environ for
partial summary judgment in favor of defendant
Laidlaw. (jhal) [Entry date 06/01/95]
MEMORANDUM by defendant Laidlaw
Environ in support of [143-1] motion for partial
summary judgment in favor of defendant
Laidlaw. (jhal) [Entry date 06/01/95]
MOTION by defendant Laidlaw Environ for
reconsideration of [133-1] findings of fact order
of 4/7/95 or alternatively for certification to the
Fourth Circuit. (jhal) [Entry date 06/01/95]
15
6/7/95
6/9/95
147
148
_—
‘sa
i
154
MEMORANDUM by defendant Laidlaw
Environ in support of [145-1] motion for
reconsideration of [133-1] findings of fact order
of 4/7/95 or alternatively for certification to the
Fourth Circuit. (jhal) [Entry date 06/01/95]
MUOT.ON by plaintiff Sierra Club, plaintff
CLEAN, Inc. . plaintiff Friends of the Earth for
expedited discovery and postponement of oral
argument on the cross motions for partial
summary judgment (ghay) [Entry date
06/06/95]
MEMORANDUM by plaintiff Sierra Club,
plaintiff CLEAN, Inc. , plaintiff Friends of the
Earth in support of [147-1] motion for
expedited discovery and postponement of oral
argument the cross motions for partial summary
judgment (ghay) [Entry date 06/06/95]
BRIEF by amicus SC Chamber Commerce,
amicus SC Textile Mfrs. (ghay) [Entry date
06/19/95}
RESPONSE by defendant Laidlaw Environ in
opposition to [139-1] motion for partial
summary judgment in favor of plaintiffs.
(bwil) [Entry date 06/09/95}
MEMORANDUM by defendant Laidlaw
Environ in opposition to [147-1] motion for
expedited discovery and postponement of oral
argument on the cross motions for partial
summary judgment (ghay) [Entry date
16
6/12/95 153
6/19/95 157
6/19/95 156
6/26/95 158
6/26/95 161
6/27/95 --
06/13/95]
BRIEF by amicus SC Industrial Waste. (ghay)
[Entry date 06/13/95]
MEMORANDUM by plaintiff Sierra Club.
plaintiff CLEAN, Inc. , plaintiff Friends of the
Earth in opposition to [145-1] motion for
reconsideration of [133-1] findings of fact order
of 4/7/95 or alternatively for certification to the
Fourth Circuit. (ghay)
MEMORANDUM by plaintiff Sierra Club.
plaintiff CLEAN, Inc. , plaintiff Friends of the
Earth in opposition to [143-1] motion for
partial summary judgment in favor of defendant
Laidlaw. (ghay)
MOTION by plaintiff Sierra Club, plaintiff
CLEAN, Inc. , plaintiff Friends of the Earth for
leave to file Reply to Defendant's Response in
Opposition to Plaintiffs motion for partial
summary judgment. (ghay)
AMENDED BRIEF by amicus SC Chamber
Commerce, amicus SC Textile Mfrs. (ghay )
Motion hearing re: [158-1] motion for leave to
file Reply to Defendant's Response in
Opposition to Plaintiff's motion for partial
summary judgment. , [147-1] motion for
expedited discovery and postponement of oral
argument on the cross motions for
partial summary judgment, [145-1] motion for
17
6/27/95 --
(27/95 192
reconsideration of [133-1] findings of fact order
of 4/7/95 or alternatively for certification to the
Fourth Circuit. . [143-1] motion for partial
summary judgment in favor of defendant
Laidlaw. , [139-1] motion for partial summary
judgment in favor of plaintiffs. . [137-1]
motion to serve supplemental discovery. Both
motions for discovery, moot. Motion for
reconsideration, denied. Plaintiff's motion for
S/J. denied. Defendants’ motion for partial
S/J, granted, inpart. Plaintiffs motion for
leave to file. granted. (JFA.jr/Jane
LaPorte). (bwil)
Minute entry: granting [158-1] motion for
leave to file Reply to Defendant's Response in
Opposition to Plaintiffs motion for partial
summary judgment. , mooting [147-1] motion
for expedited discovery and postponement of
oral argument on the cross motions for partial
summary judgment, denying [145-1] motion for
reconsideration of [133-1] findings of fact order
of 4/7/95 or alternatively for certification to the
Fourth Circuit. , granting [143-1] motion for
partial summary judgment in favor of defendant
Laidlaw. , denying [139-1] motion for partial
summary judgment in favor of plaintiffs.
mooting [137-1] motion to serve supplemental
discovery. (bwil)
REPLY by plaintiff Friends of the Earth,
plaintiff CLEAN, Inc. , plaintiff Sierra Club to
defendant's response to plaintiffs [139-1]
motion for partial summary judgment in favor
18
—
6/29/95 162
7/10/95 163
7/31/95 --
8/1/95 --
8/2/95 --
of plaintiffs. [Filed pursuant to ruling granting
plaintiffs leave to reply. ]. (ghay) [Entry date
06/05/96]
Minute order: directing that two motions for
discovery are moot: motion for leave to file is
granted, deft's motion for summary judgment
is granted, in part and denied, in part, and
plaintiffs motion for summary judgment is
denied. mld eod 6/29/95. (bwil)
ORDER denying defendant's [145-1] motion
for reconsideration of [133-1] findings of
fact order of 4/7/95 and denying alternatively
for certification to the Fourth Circuit. (signed
by Judge Joseph F. Anderson Jr. ) eod mid
7/10/95. (ghay)
Bench trial (Phase II) held before Judge Joseph
F. Anderson Jr. /Jane LaPorte. Opening
statements. WITNESSES/EXHIBITS. (bwil)
[Entry date 08/01/95]
Bench trial (Phase II) held before Judge Joseph
F. Anderson Jr. {Jane LaPorte.
WITNESSES/EXHIBITS. (bwil) [Entry date
08/02/95]
Bench trial (Phase II) held before Judge
Joseph F. Anderson Jr. /Jane LaPorte.
WITNESSES/EXHIBITS. Court takes under
advisement and will issue written order.
Counsel to submit proposed Findings of Fact
and Conclusions of Law (limited to 35 pages)
19
10/13/95 173
10/13/95 174
10/13/95 175
10/13/95 176
10/16/95 171
10/17/95 177
12/19/95 191
within 45 days. (bwil)
MOTION by defendant Laidlaw Environ to
reopen the record. for receiving newling
discovered evidence. (ghay) [Entry date
10/17/95}
MEMORANDUM by defendant Laidlaw
Environ in support of its [173-1] motion. to
reopen the record for receiving newling
discovered evidence. (ghay) [Entry date
10/17/95}
BRIEF by defendant Laidlaw Environ re:
noncompliance date of the Lancy Metals
Removal System. (ghay) [Entry date 10/17/95]
BRIEF by defendant Laidlaw Environ re:
Proposed Findings of Fact and Conclusions of
Law. (ghay) [Entry date 10/17/95]
BRIEF/PROPOSED POST TRIAL FINDINGS
OF FACT AND CONCLUSIONS OF LAW by
plaintiff Friends of the Earth. _Part of this
document is filed under SEAL pursuant to the
court's 11/24/93 protective order. (ghay)
POST TRIAL BRIEF by plaintiff Friends of the
Earth (ghay) (Entry date 10/18/95]
NOTICE of Subsequent Precedent by defendant
Laidlaw. Re: Employers Ins Co. of Wausau.
(ghay) [Entry date 06/05/96]
20
1/29/96 180
1/29/96 181
1/29/96 182
2/1/96 --
2/13/96 183
2/20/96 184
RESPONSE by plaintiff Friends of the Earth,
plaintiff CLEAN, Inc. , plaintiff Sierra Club
to [173-1] motion to reopen the record for
receiving newling discovered evidence.
(ghay) [Entry date 01/30/96]
CROSS MOTION by plaintiff Friends of the
Earth, plaintiff CLEAN, Inc. . plaintiff Sierra
Club to reopen record so that the two MQDMR
reports be received into evidence. (ghay)
[Entry date 01/30/96]
MEMORANDUM by plaintiff Friends of the
Earth, plaintiff CLEAN, Inc. , plaintiff Sierra
Club in support of [181-1] motion to reopen
record so that the two MODMR reports be
received into evidence. (ghay) [Entry date
01/30/96]
SET CLOSING ARGUMENT AND Motion
hearing re: [181-1] motion to reopen record so
that the two MODMR reports be received into
evidence and [173-1] motion to reopen the
record for receiving newly discovered evidence
at 2:00 2/29/96 (ghay)
RESPONSE by defendant Laidlaw Environ to
[181-1] motion to reopen record so that the two
MODMR reports be received evidence. (ghay)
[Entry date 02/16/96]
REPL Y/RESPONSE by plaintiff CLEAN, Inc..
plaintiff Friends of the Earth to defendant's
notice of subsequent precedent and defendant's
21
2/29/96 --
2/29/96 --
3/15/96 --
4/16/96 187
letters of 1/20 and 2/9/96. (ghay) [Entry date
02/26/96]
REPLY by plaintiff CLEAN, Inc., plaintiff
Friends of the Earth to response to [181-1]
motion to reopen record so that the two
MODMR reports be received into evidence.
(ghay) [Entry date 02/26/96]
Motion hearing re: [181-1] motion to reopen
record so that the two MQDMR reports be
received into evidence. Motion hearing held.
[173-1] motion to reopen the record for
receiving newling discovered evidence.
Motion hearing held. Court takes under
advisement and will issue written order. Court
hears closing arguments and directs counsel to
submit amended Findings within 21 days.
(bwil)
Minute entry: [181-1] motion to reopen record
so that the two MODMR reports be received
into evidence. taken under advisement, [173-1]
motion to reopen the record for receiving
newling discovered evidence. taken under
advisement (bwil)
Mediation/Settlement conference set on 10:00
3/19/96 before Magistrate Judge Bristow
Marchant. (ghay)
MOTION by defendant Laidlaw Environ to
dismiss plaintiffs complaint as moot. (ghay)
{Entry date 04/19/96]
22
4/16/96 188
4/30/96 189
5/7/96 190
9/18/96 193
9/23/96 194
9/23/96 195
10/3/96 --
MEMORANDUM by defendant Laidlaw
Environ in support of its [187-1] motion to
dismiss plaintiffs complaint as moot. (ghay)
[Entry date 04//9/96]
RESPONSE by plaintiffs to defendant's
[187-1] motion to dismiss plaintiff's complaint
as moot. (ghay)
REPLY by defendant Laidlaw Environ to
plaintiffs response to defendant's [187-1]
motion to dismiss plaintiff's complaint as moot.
(ghay) {Entry date 05/09/96]
ORDER denying defendant's [187-1] motion to
dismiss plaintiff's complaint as moot. ( signed
by Judge Joseph F. Anderson Jr. ) eod mid
9/18/96. (ghay)
ORDER granting defendant Laidlaw’s [173-1]
motion to reopen the record for receiving
newling discovered evidence. (signed by
Judge Joseph F. Anderson Jr. ) eod mid
9/23/96. (ghay)
ORDER granting plaintiff's [181-1] motion to
reopen record so that the two MODMR reports
be received into evidence. (signed by Judge
Joseph F. Anderson Jr. ) eod mid 9/23/96.
(ghay)
Tele-conference held with Magistrate Judge
Bristow Marchant's Law Clerk and Bruce Terris
and Don Cockrill: Both parties informed Clerk
23
12/19/96 196
12/19/96 197
1/22/97 198
that the case was not ready for a hearing due to
ongoing discovery; Clerk requested that both
parties notify the Judge in writing of the status
of the case. (entered AT DIRECTION OF
COURT) (will) [Entry date 10/04/96]
STIPULATION AND ORDER regarding U. S.
Filter and the Lancy treatment system. The
full transcript of the Rule30(b)(6) deposition of
US Filter is admitted [and docketed separately ]
as part of the record in this case. By 12/20/96
each party shall submit a brief to the court
addressing the impact of the guaratee to the
issues in the case and provide any revisions to
the party's proposed findings of fact and
conclusions of law. (signed by Judge Joseph F.
Anderson Jr. ) eod mid 12/20/96 cc: all
counsel (without attached deposition). (ghay)
[Entry date 12/20/96]
DEPOSITION of Stanley R. Karts. P. E.
(filed pursuant to 196-1 order of Judge Joseph
,. Anderson, Jr.). | (ghay) [Entry date
12/20/96]
FINDINGS OF FACT AND CONCLUSIONS
OF LAW: the court holds that it has
jurisdiction over defendant's violations of its
NPDES permit and the Clean Water Act;
defendant is liable for the violation of the
mercury discharge limitation and the violation
of the monitoring and reporting requirements of
- its NPDES permit; and a civil penalty of
$405,800.00 is assessed against defendant
24
1/22/97 199
1/22/97 --
2/19/97 207
2/19/97 208
2/20/97 —
2/22/97 --
Laidlaw. The plaintiff's request for a permanent
injunction is denied. (signed by Judge Joseph
F. Anderson Jr. ) eod mld 1/22/97. (ghay)
JUDGMENT that defendant Laidlaw is
assessed a civil penalty in the amount of
$405,800.00 for violations of mercury
discharge limitation and violations of
monitoring and reporting requirements of its
NPDES permit and the Clean Water Act.
Interest (post-judgment): 5. 61% (signed by
clerk; approved by Judge Joseph F. Anderson
Jr. ) eod mld 1/22/97. (ghay)
Case closed (ghay) _
NOTICE OF APPEAL by plaintiff Sierra Club.
plaintiff Citizens Local Env, plaintiff Friends of
the Earth Re: [199-1] judgment order, [198-1]
findings of fact order Fee Status: PAID.
300/11968 (cham)
NOTICE OF APPEAL by defendant Laidlaw
Environ Re: [199-1] judgment order Fee Status:
PAID, 600/3630 (cham) [Entry date 02/22/97]
Notice of appeal and certified copy of docket to
USCA: [207-1] appeal by Friends of the Earth.
Citizens Local Sierra Club (cham)
Notice of appeal and certified copy of docket to
USCA: [208-1] appeal by Laidlaw Environ
(cham)
tO
W
2/27/97
5/12/97
7/20/98 2
8/1098
214
219
224
NOTICE of Docketing ROA from USCA Re:
[207-1] appeal by Friends of the Earth, Citizens
Local Env, Sierra Club NUMBER: 97-1246,
Donna Brown (cham) [Entry date 02/28/97]
NOTICE of Docketing ROA from USCA Re:
[208-1] appeal by Laidlaw Environ USCA
NUMBER: 97-1261, 97-1246(L), Donna
Brown (cham) .
TRANSCRIPT filed [207-1] appeal by Friends
of the Earth, Citizens Local Env, Sierra Club,
[208-1] appeal by Laidlaw Environ for dates of
6/30/93 hearing (cham)
Certificate that the Record on Appeal is
Complete for [207-1] appeal by Friends of
the Earth, Citizens Local Sierra Club, [208-1]
appeal by Laidlaw Environ (cham)
Opinion of the 4th Circuit vacated and
remanded with _ instructions to dismiss the
action: re: [207-1] appeal by Friends of the
Earth, Citizens Local Env, Sierra Club,
[208-1] appeal by Laidlaw Environ (cham)
JUDGMENT OF USCA (certified copy)
vacates the judgment of the District Court, and
remands the case for further proceedings
consistent with this opinion; Re: [207-1] appeal
by Friends of the Earth, Citizens Local Env,
Sierra Club, [208-1] appeal by Laidlaw
Environ (cham)
8/17/98 --
Record on Appeal returned from U. S. Court
of Appeals: [207-1] appeal, [208-1] appeal
(cham)
27
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FRIENDS OF THE EARTH. INC.
218 D Street, SE
Washington, D.C. 20005
(202) 544-2600
and
CITIZENS LOCAL ENVIRONMENTAL
ACTION NETWORK. INC..
P.O Box 50529
Columbia. South Carolina 29250
and Civil No. 3:92-1697-17
SIERRA CLUB
730 Polk Street
San Francisco. Cahfornia 94109
Plaintiffs.
\
LAIDLAW ENVIRONMENTAL SERVICES (TOC). INC.
100 Execunve Center Drive
Santee Building. Suite 128
Columbia. South Carolina 29210
Defendant
eer eee eee ee eee eee eee ie ie ie i i i we Se Se
THIRD AMENDED COMPLAINT AND REQUEST FOR
INJUNCTIVE RELIEF
INTRODUCTION
l. This is a citizen’s suit, brought under Section
505 of the Federal Water Pollution Control Act (hereafter "the
Act"), as amended, 33 U.S.C. 1365, to remedy defendant's
repeated violations of the terms and conditions of its National
Pollutant Discharge Elimination System (hereafter "NPDES")
permit number SCO040517 for its facility located in Roebuck,
Spartanburg County, South Carolina (hereafter the " facility"),
which constitute violations of Sections 301(a), 308(a) and 402
28
- <<
of the Act, 33 U.S.C. 1311 (a), 1318 (a) and 1342. Plaintiffs
seek a declaratory judgment, injunctive relief, the imposition of
civil penalties and the award of costs, including attorneys’ and
expert witness’ fees, for defendant's violations of the terms and
conditions of its permit, including, but not limited to, the
discharge limitations and the monitoring and reporting
requirements.
JURISDICTION AND VENUE
2. This Court has subject matter jurisdiction under
Section 505(a) of the Act, 33 U.S.C. 1365 (a).
3. On April 10, 1992, plaintiff Friends of the
Earth, Inc. (hereafter "FOE"), gave notice of the violations and
their intent to file suit to the Administrator of the United States
Environmental Protection Agency (hereafter "EPA"), to the
South Carolina Department of Health and Environmental
Control (hereafter "DHEC"), and to defendant, as required by
Section 505(b)(1)(A) of the Act, 33 U.S.C. 1365(b)(1)(A). A
copy of this notice is attached as Appendix A.
4. On September 24, 1993, plaintiffs gave notice
of additional violations and their intent to file suit to EPA,
DHEC, and to defendant (hereafter the "September 1993
Notice"), as required by Section 505(b)(1)(A) of the Act, 33
U.S.C. 1365(b)(1 (A). A copy of the September 1993 Notice
is attached as Appendix B.
5. More than 60 days have passed since the
September 1993 Notice was served. To the best of plaintiffs’
knowledge, EPA has not commenced and is not diligently
prosecuting a civil or criminal action concerning the violations
alleged in this complaint. While DHEC commenced a civil
action in state court concerning these violations on June 9,
1992, this action was commenced at the request of defendant
and was not diligently prosecuted. The action was settled
29
before the suit was filed through a Consent Order and Decree
which provided inadequate remedies for defendant's violations
of its permit and the Act. Prior to the issuance of the April 10,
1992, notice letter, neither EPA nor DHEC commenced an
administrative civil penalty action under Section 309(g)(6) of
the Act. 33 U.S.C. 1319(g)(6).
6. Venue is appropriate in the District of South
Carolina pursuant to Section 505(c)(1) of the Act. 33 U.S.C.
1365(c\(1), because the violations complained of occurred
within this District.
PARTIES
Plaintiffs
7. Plaintiff FOE sues on behalf of itself and its
members. FOE is a not-for-profit corporation organized under
the laws of the State of New York, with its principal place of
business in Washington, D.C. FOE is a membership
organization with approximately 40,000 members residing in
all states of the United States. FOE is dedicated to the
protection and enhancement of the natural resources of this
country including air, water and land. More specifically, on the
basis of its research on compliance with water pollution control
laws, FOE reports to its members about the level of water
pollution law violations and FOE’s enforcement efforts;
proposes legislation to amend the Federal Water Pollution
Contro! Act; and brings litigation against dischargers of
pollutants, including dischargers into South Carolina waters,
who violate their NPDES permits. FOE’s members are greatly
concerned about water quality and FOE has a long history of
involvement in clean water activities on both the local and
national levels. The interests of FOE and its members have
been, are being, and will be adversely affected by defendant's
30
violations of the terms and conditions of its permit.
8. Members of FOE reside in the vicinity of, or
own property or recreate in, on or near the waters of the North
Tyger River and waters downstream affected by the facility's
discharge of pollutants pursuant to defendant's NPDES permit
number SCOQ040517. The quality of the waters of the State of
South Carolina, especially the portions of the North Tyger
River and waters downstream affected by the facility’s
discharge, directly affects the health, economic, recreational,
aesthetic and environmental interests of FOE’s members.
Defendant's discharge of pollutants in violation of its permit
number SCOQO40517 has adversely affected, is adversely
affecting. and will continue adversely to affect. the health,
economic, recreational, aesthetic and environmental interests
of FOE’s members. ;
9. FOE’s ability to protect and improve the waters
of South Carolina requires accurate and complete information
regarding the discharge of pollutants. Defendant's actions in
failing to monitor and report discharges from the facility
properly in violation of its permit interfere with efforts of FOE
to research the compliance status of South Carolina dischargers
with water pollution control laws and report the results of that
research to FOE members; propose legislation to amend the
Federal Water Pollution Control Act; and bring litigation
against defendant to prevent violations of the effluent
limitations in defendant's permit and thereby protect the waters
of the North Tyger River and waters downstream affected by
the facility's discharge. The interests of FOE have been, are
being and will be adversely affected by defendant’s violation
of the terms and conditions of its NPDES permit number
$CO0040517.
10. Defendant's actions in failing to monitor and
report properly in violation of its permit number SCOO040517
interfere with efforts of FOE’s members to protect their health,
31
economic. recreational. aesthetic and environmental interests
by interfering with their ability to take action on their own
behalf. Defendant's actions further interfere with FOE’s efforts
on behalf of its members to research the status of compliance
of South Carolina dischargers with water pollution control laws
and report the results of that research to FOE members; propose
legislation to amend the Federal Water Pollution Control Act:
and bring litigation against defendant to prevent violations of
the effluent limitations in defendant's permit and thereby
protect the waters of the North Tyger River and waters
downstream affected by the facility's discharge. Defendant's
violations of the monitoring and reporting requirements of its
NPDES permit number SCO040517 have adversely affected,
are adversely affecting. and will continue adversely to affect
the health. economic. recreational, aesthetic and environmental
interests of FOE’s members.
11. Plaintiff Citizens Local Environmental Action
Network. Inc. (hereafter "CLEAN") sues on behalf of itself and
its members. CLEAN isa not-for-profit corporation organized
under the laws of the State of South Carolina, with its principal
place of business in Columbia, South Carolina. CLEAN is a
statewide coalition representing 30 groups and individual
members dedicated. among other things, to protecting and
improving the quality of the waters of South Carolina. CLEAN
is committed to protecting and improving the quality of South
Carolina's streams, lakes and rivers. More specifically,
CLEAN reports to its members, the citizens of South Carolina,
and the South Carolina legislature about the condition of South
Carolina waters and enforcement efforts by regulatory
agencies: testifies before DHEC, the South Carolina Land
Resources Conservation Commission, and the South Carolina
legislature on efforts to protect the quality of South Carolina
waters: submits comments on draft NPDES permits which
allow discharges to South Carolina waters; proposes state
32
legislation to protect South Carolina waters; and brings
litigation against dischargers of pollutants into South Carolina
waters who violate their NPDES permits. The interests of
CLEAN and its members have been, are being and will be
adversely affected by defendant's violation of the terms and
conditions of its NPDES permit number SCOO040517.
12. Members of CLEAN reside in the vicinity of, or
own property or recreate in, on or near the waters of the North
Tyger River and waters downstream affected by the facility's
discharge of pollutants pursuant to defendant's NPDES permit
number SCO040517. The quality of the waters of the State of
South Carolina, especially the portions of the North Tyger
River and waters downstream affected by the facility's
discharge, directly affects the health, economic, recreational,
aesthetic and environmental interests of CLEAN’s members.
Defendant's discharge of pollution in violation of its permit has
adversely affected, is adversely affecting, and will continue
adversely to affect the health, economic, recreational, aesthetic
and environmental interests of CLEAN’s members.
13. CLEAN ’s ability to protect and improve the
waterways of South Carolina requires accurate and complete
information regarding the discharge of pollutants. Defendant’s
actions in failing to monitor and report discharges from the
facility properly in violation of its permit interfere with efforts
of CLEAN to research the status of compliance of South
Carolina dischargers with water pollution control laws and
report the results of that research to CLEAN members, the
public and the South Carolina legislature; submit comments on
water pollution control regulations; lead efforts to protect South
Carolina waters; submit comments on NPDES permits; and
bring litigation against defendant to prevent violations of the
effluent limitations in defendant’s permit and thereby protect
the waters of the North Tyger River and waters downstream
affected by the facility’s discharge. The interests of CLEAN
33
have been, are being and will be adversely affected by
defendant's violation of the terms and conditions of its NPDES
permit number SCOO40517.
14. Defendant's actions in failing to monitor and
report properly in violation of its permit number SCO04051 7
interfere with efforts of CLEAN’s members to protect their
health, economic, recreational, aesthetic and environmental
interests by interfering with their ability to take action on their
own behalf. Defendant's actions further interfere with
CLEAN’s efforts on behalf of its members to research the
status of compliance of South Carolina dischargers with water
pollution control laws and report the results of that research to
CLEAN members, the public and the South Carolina
legislature; testify before state agencies and the state
legislature; submit comments on NPDES permits; and bring
litigation against defendant to prevent violations of the effluent
limitations in defendant's permit and thereby protect the waters
of the North Tyger River and waters downstream affected by
the facility's discharge. Defendant's violations of the
monitoring and reporting requirements of its NPDES permit
number SCOO40517 have adversely affected, are adversely
affecting, and will continue adversely to affect the health,
economic, recreational, aesthetic and environmental interests
of CLEAN’s members.
15. Plaintiff Sierra Club sues on behalf of itself and
its members. The Sierra Club is a not-for-profit corporation
organized under the laws of the State of California, with its
principal place of business in San Francisco, California. The
Sierra Club is a membership organization with approximately
600.0000 members residing in al! states of the United States.
The Sierra Club is dedicated to the protection and enhancement
of the natural resources of this country including air, water and
land. More specifically, on the basis of its research on
compliance with water pollution control laws, the Sierra Club
34
reports to its members about the level of water pollution law
violations and the Sierra Club's enforcement efforts; proposes
legislation to amend the Federal Water Pollution Control Act:
and brings litigation against dischargers of pollutants, including
dischargers into South Carolina waters, who violate their
NPDES permits. The Sierra Club’s members are greatly
concerned about water quality and the Sierra Club has a long
history of involvement in clean water activities on both the
local and national levels. The interests of the Sierra Club and
its members have been, are being, and will be adversely
affected by defendant's violations of the terms and conditions
of its permit.
16. Members of the Sierra Club reside in the
vicinity of, or own property or recreate in, on or near the waters
of the North Tyger River and waters downstream affected by
the facility’s discharge of pollutants pursuant to defendant's
NPDES permit number $C0040517. The quality of the waters
of the State of South Carolina, especially the portions of the
North Tyger River and waters downstream affected by the
facility's discharge. directly affects the health, economic.
recreational, aesthetic and environmental interests of the Sierra
Club's members. Defendant's discharge of pollutants in
violation of its permit number SC0040517 has adversely
affected, is adversely affecting, and will continue adversely to
affect. the health, economic, recreational, aesthetic and
environmental interests of the Sierra Club’s members.
17. The Sierra Club’s ability to protect and improve
the waters of South Carolina requires accurate and complete
information regarding the discharge of pollutants. Defendant’ s
actions in failing to monitor and report discharges from the
facility properly in violation of its permit interfere with efforts
of the Sierra Club to research the compliance status of South
Carolina dischargers with water pollution control laws and
report the results of that research to Sierra Club members:
35
propose legislation to amend the Federal Water Pollution
Control Act; and bring litigation against defendant to prevent
violations of the effluent limitations in defendant’s permit and
thereby protect the waters of the North Tyger River and waters
downstream affected by the facility's discharge. The interests
of the Sierra Club have been, are being and will be adversely
affected by defendant's violation of the terms and conditions of
its NPDES permit number $C0040517.
18. Defendant’s actions in failing to monitor and
report properly in violation of its permit number SC0040517
interfere with efforts of the Sierra Club’s members to protect
their health, economic. recreational, aesthetic and
environmental interests by interfering with their ability to take
action on their own behalf. Defendant’s actions further
interfere with the Sierra Club’s efforts on behalf of its members
to research the status of compliance of South Carolina
dischargers with water pollution control laws and report the
results of that research to Sierra Club members: propose
legislation to amend the Federal Water Pollution Control Act:
and bring litigation against defendant to prevent violations of
the effluent limitations in defendant's permit and thereby
protect the waters of the North Tyger River and waters
downstream affected by the facility’s discharge. Defendant's
violations of the monitoring and reporting requirements of its
NPDES permit number SC0040517 have adversely affected,
are adversely affecting, and will continue adversely to affect
the health, economic. recreational, aesthetic and environmental
interests of the Sierra Club’s members.
Defendant
19. Defendant Laidlaw Environmental Services
(TOC). Inc., is a private corporation organized under the laws
of the State of South Carolina. Defendant is doing business in
a '
Roebuck. Spartanburg County, South Carolina, where it
operates the facility.
FACTS
20. Pursuant to Section 402 of Act, DHEC issued
NPDES permit number SC00405 17 to defendant for the facility
on December 15, 1986. The permit authorizes defendant to
discharge limited quantities of pollutants from the facility into
the North Tyger River. The North Tyger River is a navigable
water of the United States.
21. Section 308 of the Act, 33 U.S.C. 1318.
authorizes the Administrator to require NPDES permittees to
establish and maintain records; install, use and maintain
monitoring equipment, sample effluents; and report on a
regular basis to the permit-issuing agency regarding
defendant's discharge of pollutants. The reports consist of
discharge monitoring reports (hereafter "DMRs") and
noncompliance reports (hereafter "NCRs").
22. Defendant has submitted DMRs and NCRs to
DHEC since at least April 1987. Defendant has also prepared
laboratory reports reflecting its monitoring results and daily
logs showing mercury concentrations since at least April 1987.
Appendix A, plaintiffs’ Notice of Intent to Sue of April 10,
1992, and Appendix B, plaintiffs’ Notice of Intent to Sue of
September 24, 1993, list numerous violations of the effluent
limitations and monitoring and reporting requirements which
have been taken from the DMRs and NCRs submitted by
defendant pursuant to NPDES permit number SCO040517 and
from defendant’s laboratory reports and mercury logs.
Appendices A and B are incorporated herein by reference.
23. Defendant’s violations of the Act have been
numerous and repeated. Over the almost seven-year period
covered by Appendices A and B, defendant violated the terms
and conditions of its permit at least 2300 times. Because of
this extensive history of violations of the terms and conditions
of NPDES permit numbers SCOO04051 7, plaintiffs believe and
allege that defendant may have violated its permit on additional
occasions prior to, during, and subsequent to the period of the
violations listed in Appendices A and B.
24. Because of this extensive history of violations
of the effluent standards and limitations imposed by
defendant's NPDES permit number SCOO40517, plaintiffs
believe and allege that, without the imposition of appropriate
civil penalties and the issuance of an injunction, defendant will
continue to violate its permit to the further injury of plaintiffs,
their members and other members of the public.
CLAIM
25. Section 301(a) of the Federal Water Pollution
Control Act. 33 U.S.C. 1311(a), prohibits the discharge of
pollutants trom a point source into navigable waters of the
('nited States. unless in compliance with various enumerated
sections of the Act. Section 301(a) prohibits, inter alia, such
discharges not authorized by, or in violation of, the terms and
conditions of an NPDES permit issued pursuant to Section 402
of the Act, 33 U.S.C. 1342. Section 402(k) provides that
compliance with the terms and conditions of a permit issued
pursuant to that section shall be deemed compliance with, inter
alia. Section 301 of the Act.
26. Pursuant to Sections 308 and 402 of the Federal
Water Pollution Control Act, 33 U.S.C. 1318 and 1342,
detendant’s NPDES permit number SCOO040517 requires it to
monitor the facility's discharge and to report monitoring and
sampling information regarding its discharge.
27. Sections 305(a) and 305(f)(6) of the Federal
Water Pollution Control Act. 33 U.S.C. 1365(a) and 1365(f)(6),
authorize citizens to enforce "a permit or condition thereof,"
including the effluent limitations and monitoring and reporting
requirements of an NPDES permit.
28. Defendant has failed in numerous instances,
including, but not limited to, those listed in Appendix A, the
reporting and monitoring violations listed in Appendix B, and
discharge violations 31-32 and 34-1044 in Appendix B, to
comply with NPDES permit number SCO040517, including
failures to comply with the effluent limitations and to monitor
and report its discharge properly. As a result, it has violated
Sections 301, 308 and 402 of the Act, 33 U.S.C. 1311, 1318
and 1342.
RELIEF
Wherefore, plaintiffs respectfully request this Court to
grant the following relief:
A. Issue a declaratory judgment that defendant has
violated, and continues to be in violation of, Sections 301, 308
and 402 of the Federal Water Pollution Control Act. 33 U.S.C.
1311, 1318 and 1342;
B. Enjoin defendant from operating its facility in
such a manner as will result in the further violation of NPDES
permit number SCOO40517 and Sections 301. 308 and 402 of
the Act, 33 U.S.C. 1311, 1318 and 1342;
C. Order defendant to comply with all effluent
limitations, monitoring and reporting requirements, and other
terms and conditions of NPDES permit number SCOO40517;
D. Order such other injunctive relief as the Court
deems appropriate, including restitution and mitigation;
4 Order defendant to provide plaintiffs with a
copy of all monitoring results, reports and other documents
which defendant submits to the federal or state government
39
regarding NPDES permit number SCOO040517 at the time they
are submitted to these authorities and all monitoring results
which are not submitted to the federal or state government
within 10 days of their receipt by defendant;
F. Order defendant to pay appropriate civil
penalties for each violation of NPDES permit number
SCOO40517. pursuant to Sections 309(d) and 505(a) of the
Act, 33 U.S.C. 1319(d) and 1365(a). including those listed in
Appendix A, the reporting and monitoring violations listed in
Appendix B, the discharge violations 31-32 and 34-1044 in
Appendix B, and all violations committed by defendant in
addition to those listed in Appendices A and B:
G. Award plainuffs their costs. including
reasonable attorneys and expert witness’ fees, as authorized by
Section 505(d) of the Act, 33 U.S.C. 1365(d): and
H. Award such other relief as this Court deems
appropriate.
Respectfully submitted,
BRUCE J. TERRIS
MARK V. DUGAN
Terris, Pravlik & Wagner
1121 12" Street, N.W.
Washington, D.C. 20005
(202) 682-2100
JAMES CHANDLER ID#91
707-C Front Street
Georgetown, SC 29440
(803) 527-0078
40
at Sm
November 24. 1993
ROBERT GUILD ID#2499
314 Pall Mall
Columbia, SC 29201
(803) 252-1419
Counsel for Plaintiffs
4]
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
PRIENDS OF THE EARTHOING.
21S D Street. SE
Washington. DC 20003
(202) 544-2600
and
CLLIZENS LOCAL ENVIRONMENTAL
ACTION NETWORK. ING
PO BOX 80529
Columbia. South Carolina 29250
and Civil No 3-92-1697-17
SIFRRA CLUB
730 Polk Street
San branciseo. Calitornia 94109
Plaintitts.
\
LAIDLAW ENVIRONMENTAL SERVICES
(LOC)Y ING.
100 Executuve Center Drive
Santee Building. Suite 128
Columbia, South Carolina 29210
Detendant
tl i
‘
ANSWER TO AMENDED COMPLAINT
COMES NOW, Laidlaw Environmental Services
(TOC), Inc., Defendant herein, and hereby files and serves its
Answer To Plaintiffs’ Amended Complaint as follows:
FIRST DEFENSE
Defendant answers the numbered paragraphs of
Plainutts’ Amended Complaint as follows:
Answering paragraph | of the Amended Complaint,
Detendant admits that Plainufts purport to bring this action
pursuant to Section 505 of the Federal Water Pollution Control
Act, as amended, 33 U.S.C. § 1365. Detendant denies that
Plaintifts are entitled to maintain this action and Defendant
turther denies all remaining allegations contained in said
paragraph.
tv
Detendant denies each and every allegation contained
in paragraph 2 of the Amended Complaint.
2
).
Answering paragraph 3 of the Amended Complaint,
Detendant admits that it received a letter from Plaintiff Friends
ot the Earth ("FOE") dated April 10, 1992, which purported to
give Detendant sixty days notice of FOE’s intent to sue.
Defendant denies that a copy of this notice was attached as an
appendix to the proposed Amended Complaint received by
Defendant. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the remaining
allegations contained in said paragraph.
4.
Answering paragraph 4 of the Amended Complaint,
Detendant admits that more than sixty days passed between the
date that FOE’s notice was purportedly sent to Defendant and
the date Plaintiffs’ proposed Amended Complaint was received
by Defendant. Further answering. Defendant admits that the
( nited States Environmental Protection Agency ("EPA") has
not commenced any administrative. civil, or criminal action
ayvainst Defendant. Further answering. Defendant admits that
the South Carolina Department of Health and Environmental
Control ("DHEC") commenced a civil action in State Court
avainst Defendant on June 9, 1992. and that a Consent Order
and Decree was entered in that civil action on June 10, 1992.
Detendant demes al] remaining allegations contained in said
paragraph.
»
Answering paragraph 5 of the Amended Complaint,
Detendant admits that venue 1s appropriate in this Court.
Detendant denies all remaining allegations contained in said
paragraph.
6.
Answering paragraph 6 of the Amended Complaint.
[defendant denies that the interests of FOE or its members have
been. are being, or will be, adversely affected by any alleged
violations of Defendant's NPDES permit. Defendant is without
knowledge or information sufficient to form a belief as to the
truth of the remaining allegations contained in said paragraph.
44
a
7.
Answering paragraph 7 of the Amended Complaint.
Defendant denies that the health, economic, recreational,
aesthetic and/or environmental interests of FOE’s members
have been adversely affected. are being adversely affected. or
will be adversely affected. by any alleged violations of
Defendant's NPDES permit. Defendant is without knowledge
or information sufficient to form a belief as to the truth of the
remaining allegations contained in said paragraph.
Answering paragraph 8 of the Amended Complaint.
Detendant is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in the
first sentence of said paragraph. Defendant denies all
remaining allegations contained in said paragraph.
9.
Defendant denies each and every allegation contained
in paragraph 9 of the Amended Complaint.
10.
Answering paragraph 10 of the Amended Complaint,
Defendant denies that the interests of CLEAN or its members
have been, are being. or will be, adversely affected by any
alleged violations of Defendant's NPDES permit. Defendant
is without knowledge or information sufficient to form a belief
as to the truth of the remaining allegations contained in said
paragraph.
45
Answering paragraph |! of the Amended Complaint,
Detendant denies that the health, economic, recreational,
aesthetic, and or environmental interests of CLEAN ’s members
have been adversely affected, are being adversely affected, or
will be adversely affected by any alleged violations of the
Detendant’s NPDES permit. Defendant is without knowledge
or information sufficient to form a belief as to the truth of the
remaining allegations contained in said paragraph.
12.
Answering paragraph 12 of the Amended Complaint,
Detendant is without knowledge or information sufficient to
torm a beliet as to the truth of the allegations contained in the
first sentence of said paragraph. Defendant denies all
remaining allegations contained in said paragraph.
13.
Detendant denies each and every allegation contained
in paragraph 13 of the Amended Complaint.
14.
Answering paragraph 14 of the Amended Complaint,
Detendant denies that the interests of the Sierra Club or its
members have been, are being, or will be, adversely affected by
any alleged violations of Defendant's NPDES permit.
Detendant is without knowledge or information sufficient to
form a belief as to the truth of the remaining allegations
contained in said paragraph.
46
15.
Answering paragraph 15 of the Amended Complaint,
Defendant denies that the health, economic, recreational,
aesthetic, and/or environmental! interests of the Sierra Club's
members have been adversely affected, are being adversely
affected, or will be adversely affected, by any alleged
violations of Defendant's NPDES permit. Defendant is without
knowledge or information sufficient to form a beliet as to the
truth of the remaining allegations contained in said paragraph.
16.
Answering paragraph 16 of the Amended Complaint,
Defendant is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in the
first sentence of said paragraph. Defendant denies all
remaining allegations contained in said paragraph.
17.
Detendant denies each and every allegation contained
in paragraph 17 of the Amended Complaint.
18.
Detendant admits the allegations contained in paragraph
18 of the Amended Complaint.
19.
Answering paragraph 19 of the Amended Complaint,
Detendant admits that DHEC has issued an NPDES permit to
Detendant to discharge treated effluent into the North Tyger
47
River. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the remaining
allegations contained in said paragraph.
20.
Answering paragraph 20 of the Amended Complaint,
Defendant admits the first sentence of said paragraph, which ts
merely a summary of portions of Section 308 of the Act.
Further answering. Defendant admits that reports submitted to
DHEC consist both of discharge monitoring reports (DMRs)
and non-compliance reports (NCRs).
21.
Answering paragraph 21 of the Amended Complaint,
Defendant admits that it has submitted DMRs and NCRs since
at least January, 1990. Defendant is without knowledge or
information sufficient to form a belief as to the truth of the
allegations regarding appendices A and B, since no such
appendices were attached to the proposed Amended Complaint
Defendant received from Plaintiffs. Further answering, to the
extent said appendices are similar or identical to those attached
to Plaintiff's original Complaint, which was filed with this
Court on June 12, 1992, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the
allegation that information contained in those appendices was
taken directly from DMRs and NCRs submitted by Defendant
to DHEC. Defendant denies all remaining allegations
contained in said paragraph.
22.
Answering paragraph 22 of the Amended Complaint,
48
a Ce a et SE A Mca
ee
eeeeeniedtemeettien inte etre ee ee ee
2 ee. ee Lk wees
Defendant is without knowledge or information sufficient to
form a belief as to the truth of the allegations regarding
information purportedly reported on Appendix B to the
Amended Complaint, since no such appendix was attached to
the proposed Amended Complaint received by Defendant.
Defendant denies all remaining allegations contained in said
paragraph.
«.
| Defendant denies each and every allegation contained
in paragraph 23 of the Amended Complaint.
24.
| Answering paragraph 24 of the Amended Complaint,
Defendant admits that said paragraph summarizes certain
portions of Sections 301 and 402 of the Act.
25
Answering paragraph 25 of the Amended Complaint.
Defendant admits that its NPDES permit contains several
elements and sets forth several conditions, including certain
monitoring and reporting requirements.
26.
| Detendant denies each and every allegation contained
in paragraphs 26 and 27 of the Amended Complaint.
27.
Detendant denies that Plaintiffs are entitled to any relief
49
whatsoever. including that specifically requested in paragraphs
A through H of the Prayer for Reliet.
28.
Further answering. Defendant expressly denies each
and every allegation contained in the Amended Complaint that
has not been admitted, denied, or otherwise responded to in this
Answer.
SECOND DEFENSE
Plaintiffs’ Amended Complaint fails to state a claim
upon which relief can be granted.
Plaintiffs’ claims are barred, in whole or in part, by the
applicable statute(s) of limitations.
FOURTH DEFENSE
Plaintiffs Amended Complaint should be dismissed for
insufficiency of service of process.
FIFTH DEFENSE
Plaintiffs’ claims are barred for lack of standing.
SIXTH DEFENSE
Plaintiffs’ claims are barred under Section 505(b) of the
Act by reason of a prior civil action filed by DHEC and a
judicial decree entered thereon by the Court of Common Pleas,
50
Spartanburg County, South Carolina, Civil Action No. 92-CP-
42-1 429. covering each and every claim raised by Plaintiffs in
their Amended Complaint.
SEVENTH DEFENSE
Alternatively, Plaintiffs’ claims are barred by Section
505(b) of the Act because DHEC has commenced and is
diligently prosecuting a civil action in the Court of Common
Pleas, Spartanburg County, South Carolina. Civil Action No.
92-CP-42-1429, to require compliance with the NPDES permit
that is the subject of Plaintiffs’ lawsuit.
EIGHTH DEFENSE
The claims of Plaintiffs CLEAN and Sierra Club are
barred by lack of subject matter jurisdiction because neither of
these organizations provided written notice of their intent to sue
as required by Section 505(b) of the Act.
NINTH DEFENSE
Alternatively, the claims of CLEAN and Sierra Club
should be dismissed for their failure to comply with the
condition precedent of providing written notice of their intent
to sue as required by Section 505(b) of the Act.
Respectfully submitted,
OGLETREE, DEAKINS. NASH,
SMOAK AND STEWART
Michael S. Thwaites
a”
os
Ronald E. Cardwell
Federal 1.D. No. 5038
{CERTIFICATE OF SERVICE OMITTED]
‘”
tJ
j
t
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Friends of the Earth, et al,
C/A No. : 3:92-1697-17
Plaintifts.
\
ORDER
Laidlaw Environmental Services,
Detendant.
Plaintiffs Friends of the Earth. Inc. ("FOE") and
Citizens Local Environmental Action Network ("CLEAN")
brought this action against defendant Laidlaw Environmental
Services. Inc. ("TOC") as a citizens suit under Section 505 of
the Federal Water Pollution Control Act, as amended.
commonly known as the Clean Water Act (the "Act").
Subsequent to the filing and service of the complaint, plainuft
Sierra Club sought to join this action as a named plaintiff by
virtue of an amended complaint which was filed on July 20,
1992.
TOC owns and operates a hazardous waste incinerator
in Roebuck. South Carolina, and as part of that facility,
operates a wastewater treatment system. The South Carolina
Department of Health and Environmental Control ("DHEC")
authorized the facility to discharge treated wastewater into the
North Tyger River-in accordance with a National Pollutant
Discharge Elimination System ("NPDES") permit issued on
December 15. 1986. The NPDES permit was modified on
December 14, 1989, and on July 23, 1990. — Although the
NPDES permit expired on December 31. 1991, TOC made a
timely application for renewal of the NPDES permit and
therefore continues to operate under the terms of the NPDES
nA
ve)
permit, as modified, pending renewal. Plaintiffs allege that
wastewater discharges by TOC violated and continue to violate
the terms and conditions of TOC's NPDES permit.
FOE notified TOC by letter dated April 10, 1992, that
it intended to file a citizens suit under § 505 of the Clean Water
Act based upon TOC's violations of its permit limits. On June
9. 1992. three days before the sixty day notice period was to
expire.| DHEC commenced a civil action in state court against
TOC. The state civil action was based upon the same
violations of permit limits as those alleged by Friends in its
notice letter and complaint. The state civil action was settled
and a consent order and decree was entered between DHEC and
TOC on June 10, 1992. Friends commenced this suit on June
12, 1992.
The matter is now before the court upon four motions:
1) TOC's motion to strike the amended complaint.
joining Sierra Club as a new plaintiff, and to strike all related
pleadings for failing to comply to Rules 15 and 21. Fed. R.
+ a Ap
2) TOC's motion to dismiss pursuant to Rule 12(b)(1).
Fed. R. Civ. P. .all claims brought by CLEAN and Sierra
Club for lack of subject matter jurisdiction due to their failure
to provide the statutorily required sixty-day notice of intent to
file suit; and |
3) TOC's motion to dismiss for failing to state a claim
for which relief can be granted, upon the grounds that this
action is precluded by the state court action brought by DHEC
against TOC.
' Before a citizens suit can be brought under the Clean Water Act. notice of
alleged permit violations must be provided to the alleged violator. DHEC and the
FPA 33U S.C. § 136Xb)
54
4) Plaintiffs' motion for a preliminary injunction to
enjoin TOC from violating its NPDES permit.
The court conducted a hearing on all four motions at the
University of South Carolina School of Law on November 19.
1992. At the conclusion of the hearing. the court took all four
motions under advisement and scheduled a visit to the Roebuck
hazardous waste incinerator. The court, along with
representatives of both parties. conducted its tour of the
incinerator on December 3, 1992.
TOC's Motion To Strike Pursuant to Rule 21
Because Of A Defective Amendment To The Complaint
This action was initially filed by two plaintiffs, FOE
and CLEAN. _ Thereafter. an amended complaint was filed
purporting to add the Sierra Club as a third plaintiff. The
amendment was made pursuant to Fed. R. Civ. P. 15(a).
which generally provides that a party may amend, as a matter
of right, at any time before a responsive pleading is served.
After the complaint was filed, TOC filed its motion to strike.
which is technically not a "responsive pleading. " Smith y.
Blackledge, 451 F. 2d 1201, 1203 n. 2 (4th Cir. 1971).
Therefore, plaintiffs sought to act pursuant to Rule 15(a) when
they amended the complaint to add the Sierra Club. However.
the more liberal requirements of Rule 15 clearly conflict with
the requirements of Fed. R. Civ. P. 21. regarding joinder
of additional parties. Rule 21 provides for the addition of
parties "by order of the court on motion of any party or of its
own initiative. " Fed. R. Civ. P. 21 (emphasis added).
Several courts. including the Fourth Circuit, have held that
Rule 21 is controlling when there exists a conflict between
Rule 21 and 15. See Age of Majority Educational Corp. v.
Preller, 512 F. 2d 1241 (4th Cir. 1975); see also 6 Charles
Ww
A)
A. Wright, FT AL. . Federal Practice and Procedure § 1479,
at S70( 1990). Accordingly, Rule 21 applies and therefore the
effort to join Sierra Club as a co-plaintiff, without first securing
the approval of the court, was inappropriate. At oral
argument, the court indicated its tentative conclusion on this
issue, and invited the parties to orally move to join the Sierra
Club pursuant to Rule 21. The two remaining plaintiffs
promptly made such a motion which was granted by the court.
Vheretore, although the court agrees with TOC that the earlier
amendment was invalid, the court hereby grants the motion of
FOR and CLEAN to add the Sierra Club as an additional
plamutt,
TOC's Motion To Dismiss Pursuant To Rule 12(b)(1)
For Lack Of Subject Matter Jurisdiction
TOC moves to dismiss all claims brought by CLEAN
and Sierra Club for lack of subject matter jurisdiction.
Specifically, TOC points out that FOE was the only one of the
three plaintitts to formally notify TOC of its intention to file
suit after the expiration of sixty days. CLEAN and the Sierra
Club did not join in the letter. Compliance with the notice
requirement of § SOS(b) is a jurisdictional prerequisite to
bringing suit. = See National Environmental Foundation v
ABC Rail Corp. , 926 F. 2d 1096, 1097-98 (11th Cir. 1991).
The court is thus presented with the question of whether the
sixty day notice requirement of the Clean Water Act requires
that each individual plaintiff separately provide written notice
betore joining in an action.
This issue was directly addressed by this court in South
Curolina Wildlife Federation vy Alexander, 457 F.Supp.
118, 124(D. S.C. 1978), which held that notice provided by
one of several plaintiffs constituted substantial compliance with
the Clean Water Act. Judge Chapman reasoned that since the
sha
>
omission of some of the plaintiffs from the notice "would in no
way fail to put the defendants on notice as to the nature of the
suit or the basis on which it was to be brought .
defendants have not been prejudiced by this omission .
"dd at 123-24. Other district courts have followed Judge
Chapman's decision. See Student Public Interest Research
Groupv AT&T Bell Laboratories,617 F. Supp. 1190, 1194
(D. N. J. 1986); Student Public Interest Group v Tenneco
Polymers, Inc. .602 F. Supp. 1394, 1396(D. N. J. 1985).
As in Alexander, the detendant can show no prejudice
resulting trom the failure of CLEAN and the Sierra Club to join
in the sixty day notice letter. The claims brought by all three
plaintifts in their complaint are exactly the same claims
predicted in the notice letter. Finding no prejudice to the
defendant, the court denies the motion to dismiss.
TOC’s Motion To Dismiss Pursuant To Rule 12(b)(6)
Because Of The Earlier DHEC Civil Actio
The Clean Water Act makes unlawtul the discharge of
any pollutant into navigable waters except pursuant to a permit
system established by the Act. 33 U. S.C. 8§ 1311.
Section 402(a) of the Clean Water Act, 33 U. S. C. §
1342(a), provides that the EPA may issue NPDES permits
authorizing effluent discharges of pollutants into navigable
Walters. Section 402(a) further provides that effluent
discharges shall be specified in the NPDES permit. Section
402(b) allows each state to develop and administer its own
NPDES permit program provided the program meets federal
requirements. DHEC is the South Carolina agency which
administers the NPDES permit program.
Section 505(a) of the Act, 33 U. S.C. § 136S(a),
authorizes citizens to commence civil actions against alleged
violators of NPDES permits subject. however, to certain
57
limitations. Betore the citizen suit can be commenced, the
citizen, here FOR, must give notice of the violations to the
alleged violator, DHEC, and the EPA. The citizen suit may
then be filed no sooner than 60 days after such notice has been
given. 330. S.C. §1365(b). However, a citizen suit may
not be commenced if DHEC “has commenced and ts diligently
prosecuting a civil or criminal action” in a state court “to
require compliance with the standard.limitation, or order. " 33
LS. C. § 1365(b)1 1B).
In the present case, TOC's position is that DHEC's civil
action commenced on June 9, 1992, which resulted in a consent
order filed the next day, on June 10, 1992, precludes this suit,
which FOE filed on June 12, 1992. In support of their
argument. TOC cites Gwaltney v Chesapeake Bay
Foundation. Inc 484 U. SS. 49, 60 (1987), in which the
Supreme Court explained that under the Act, citizen suits were
intended to supplement rather than to supplant government
action and that citizen suits are proper only "if the Federal,
State. and local agencies fail to exercise their enforcement
responsibility. " The Gwaltney Court further noted that the 60-
day notice period was designed to enable governmental
avencies to respond by initiating actions against the alleged
polluter. “If the . State commences enforcement action
within that 60-day period. the citizen suit is barred, presumably
hecause governmental action has rendered it unnecessary. “
4840. S. at 59.
TOC also argues that public policy considerations
weigh in favor of barring citizen suits once a governmental
agency brings an action to force compliance with the Act.
1OC asserts that the most significant deleterious impact of
allowing citizen suits to proceed concurrently or subsequent to
governmental action is that allowing citizens dissatisfied with
the terms of a settlement between an alleged polluter and a
yovernmental agency to institute a citizen suit any ume after
58
ee el
settlement would undermine agency authority to regulate water
pollution. Therefore, TOC argues that an alleged polluter's
incentive to settle would be greatly diminished. TOC further
argues that to allow citizen suits in such situations would
expose alleged polluters to duplicative prosecutions for the
same violations and potentially to conflicting court orders to
enforce the same NPDES permit limits.
It appears that the critical determination with regard to
this issue is whether DHEC “diligently prosecuted” its
enforcement action against TOC. Defendant reads the diligent
prosecution provision of section 505(b)1)(B) of the Clean
Water Act as not applicable in situations such as the one
presented here, where the government commences an action
within the 60-day notice period and prior to the commencement
of a citizen suit. However, this seems to be a rather tortured
reading of the statute. Instead. plaintiffs’ interpretation of this
section makes more sense: the government's lawsuit must meet
two conditions in order to bar a citizen suit; it must be
commenced before the citizen suit is filed and it must be (or
have been) diligently prosecuted.
Thus, plaintiffs assert that DHEC's lawsuit brought
during the 60-day notice period would bar plaintiff's suit only
if it has been “diligently prosecuted." Plaintiffs assert that
TOC's drafting of the DHEC complaint and consent order, the
lenient penalties imposed for the NPDES permit violations, and
the swift settlement of the DHEC action demonstrate a lack of
diligent prosecution.
Defendant counters that DHEC did diligently prosecute
its action. [TOC points out that the enforcement action against
TOC began some three to four months before DHEC's
complaint was filed. TOC further asserts that the consent
order eventually entered into between DHEC and TOC was the
result of three to four days of intensive negotiations. TOC
also takes issue with the plaintiffs assertion that the $100,000
59
penalty imposed :s lenient.
The court will deny TOC's motion to dismiss grounded
upon the assertion that the DHEC litigation precludes this suit.
Although the parties take contrasting positions on the validity
of the DHEC prosecution. DHEC representatives were
noticeably absent from the oral argument held on December 2.
lt appears to the court that factual issues must be resolved to
determine whether DHEC "diligently prosecuted" its action
against TOC before the court can decide whether the DHEC
action bars plaintiffs’ suit. A determination of this factual
question will necessarily involve some of the same factual
issues that will be presented if and when this case is heard on
its merits. The court will thus be faced with the question of
whether to conduct a separate evidentiary hearing on the issue
of whether DHEC diligently prosecuted the state court action
or whether such a determination should be made in the context
of an overall determination of this action on its merits. The
parties are invited to file submissions with the court setting
forth their positions as to whether a separate evidentiary
hearing on this one issue is appropriate. Factors which should
be addressed in any such submissions should include, but are
not limited to, the burden and expense of separate hearings on
the litigants and the conservation of judicial resources.
Plaintiffs’ Motion For A Preliminary Injuncti
The four-factor standard for a preliminary injunction is
well established in this circuit. The court must examine:
1) the likelihood of irreparable harm to the movant if
the preliminary injunction is denied,
2) the likelihood of irreparable harm to the non-movant
if the requested relief is granted,
. rt te een les ae
a - ee
3) the likelihood that the movant will succeed on the
merits, and
4) the public interest.
National Resources Defense Council v. Watkins, 954 F. 2d
974. 981 (4th Cir. 1992). The court will address these issues
seriatim.
1) The Likelihood Of Irreparable Harm To The Plaintiffs
In attempting to carry the burden of showing irreparable
harm, the plaintiffs rely on affidavits of individuals who live
~ the river and further point to the alleged permit violations
u. inemselves evidence of irreparable injury. The court has
carefully reviewed the affidavits of the individuals who live on
or near the river in question and find that they do not establish
irreparable injury.
As to the second proposition, even if this court assumes
for purposes of argument that violations have occurred and are
continuing to occur. these violations alone do not necessarily
mean that plaintiffs are entitled to a preliminary injunction.
The Supreme Court cases of Weinberger v. Romero-Barcelo.
456 U. S. 305 (1982), and Amoco Production Co. v
Village of Gambell, Alaska, 480 U. S. 531 (1987) hold that
procedural or technical violations of the Clean Water Act will
not support an injunction. The best illustration of this point
is the case cited by plaintiffs for the appropriate standard for a
preliminary injunction, Natural Resources Defense Council,
Inc. v. Watkins, 954 F. 2d 974 (4th Cir. 1992). If
plaintiffs could rely solely on the existence of permit
violations, there would be no need for Watkins articulation and
application of a four-part standard of plaintiffs’ burden of proof.
Significantly, in Watkins, the NRDC actually presented an
expert affidavit on the issue of environmental harm. The
61
court found the affidavit sufficient to raise a factual issue on the
question of standing. but "far from sufficient to prove the
existence of irreparable environmental damage. " /d at 983.
In contrast to plaintiffs’ failure to offer evidence of
environmental harm. TOC offers the affidavit of Michael W.
Marlowe. summarizing evidence TOC has assembled to show
that TOC's emissions have not caused harm to the environment.
Pursuant to the June 10. 1992 Consent Order, TOC, through
RMT. Inc. . conducted an investigation of mercury levels in
fish tissues for the North and Middle Tyger Rivers in
Spartanburg County. Aff. of Marlowe, “4. The
investigation was conducted according to a workplan reviewed
and approved by DHEC. Aff. of Marlowe, 44. The report
concluded there was no significant difference in the mercury
concentration in fish tissues collected above and downstream
of TOC's discharge location. Aff. of Marlowe, $4.
TOC has also conducted. through Shealy
Environmental Consultants. Inc. . 96-hour flow-through
bioassays on TOC's plant which indicated that the effluent was
not acutely toxic to the fish tested. Aff. of Marlowe, 95.
Moreover. Shealy has performed aquatic macroinvertebrate
assessments of the North Tyger River and determined that the
effluent is having little or no toxic effect on the aquatic
macroinvertebrate community. Aff. of Marlowe, 46.
Therefore. as in Watkins, plaintiffs have failed to offer
sufficient evidence while TOC has offered contrary evidence
on the issue of irreparable harm to plaintiffs. | Accordingly.
plaintiffs have. at this juncture at least, failed to carry their
burden of showing irreparable harm.
2. Likelihood Of Irreparable Harm To The Defendant
Plaintiffs contend that TOC would suffer only
economic harm which would not be overwhelming to TOC if
62
the injunction is improperly granted. TOC counters that it has
spent over $900,000 in an effort to improve its compliance with
its permit. Conceding that "a few" problems need to be
resolved, TOC contends, in its brief, that an injunction at this
stage would likely force the facility to close. However, at oral
argument, when afforded the opportunity to present sworn
testimony over the possibility of plant closure in the event of an
injunction, TOC declined to offer such testimony. Thus, the
court does not accept TOC's assertion that it would be forced
to close its doors if the injunction were to be granted. The
court does recognize, however, a degree of economic harm.
which may be insignificant in terms of TOC's overall financial
base, which would inure to TOC if injunctive relief were
granted. Accordingly. this factor does not militate strongly
against the award of an injunction.
3. Likelihood Of Success On The Merits
Plaintiffs, pointing to what they contend to be
undisputed permit violations which continue to occur,
confidentially predict that they "will almost certainly succeed
on the merits."
Defendants cling fast to their position that the DHEC
litigation forecloses any citizens suit such as this, and that the
defendants will certainly prevail on the merits. The court is
of the opinion that both sides have overstated the strength of
their respective positions. As noted above, permit violations
alone may not be sufficient to entitle the plaintiffs to the
injunctive relief they seek. Additionally, the fact that DHEC
has filed suit and settled that same action the next day does not
necessarily mean this action is barred if this court later
determines that the DHEC action was not diligently prosecuted.
Accordingly, the court finds that neither party has made a
substantial showing of likelihood of suctess on the merits, the
evidence to this point being in equipoise. Accordingly. since
plaintiffs fail to carry their burden. this factor militates against
the award of injunctive relief.
4. The Public Interest
The plaintiffs contend that the public interest in a clean
environment is paramount. The defendants counter that the
plaintiffs cannot rely on this interest when they have presented
no evidence of no real environmental harm, as noted above.
Defendant contend that the public interest in a clean
environment does not extend to the unreasonable degree of
making all other economic interests subservient to plaintiffs’
desire for a clean environment. Defendant further contend
that there is an additional public interest which must be
considered - the interest in governmental enforcement of
environmental policy over multiple private actions seeking
enforcement by citizens. Finally, TOC contends that there is
a public interest in TOC's continued operation. TOC is a
hazardous waste incinerator. As such, it performs a desirable
societal function in treating and disposing of hazardous waste.
As noted above. the court is not prepared to accept
TOC's contention that it will be forced to close if an injunction
is granted. Accordingly, although the public definitely has an
interest in the continued operation of the facility. TOC has been
unable to show that this interest would be adversely affected by
a preliminary injunction. All of the other public interests
asserted by the parties appear to be legitimate and present in
this case. However. as these public interests "cut both ways,"
plaintiffs have not made a sufficiently strong showing in regard
to this factor. and thus this factor militates against the issuance
of an injunction.
In summary. the plaintiffs have not come forward with
a strong enough showing on the likelihood of irreparable
64
ee
injury. Aside from increased operating costs. the defendant
has not demonstrated substantial injury to itself if the
injunction is granted. The likelihood of success on the merits
is uncertain at this point, and the public has interests both
favoring and denying an injunction. In light of the foregoing.
the court is constrained to deny the motion for a preliminary
injunction.
For the foregoing reasons, both of TOC's motions to
dismiss. as well as its motion to strike, are denied. Plaintiffs’
motion for a preliminary injunction is denied. Plaintiffs’
motion, made orally at the hearing on November 19. to add the
Sierra Club as a co-plaintiff is granted.
IT IS SO ORDERED.
Joseph F. Anderson, Jr.
United States District Judge
December 14, 1992
Columbia, South Carolina
65
IN THE UNITED STATES DISTRICT COURT
POR THE DISTRICT OF SOUTH CAROLINA
PRIENDS OF THE EARTH. ING
PIT Al
PLAINTIFFS
VERSUS
LAIDLAW ENVIRONMENTAL SERVICES
(TOC) ING
DEFENDANT
BEFORI
COLUMBIA DIVISION
)
)
)
)
)
) CANO
)
)
)
)
)
woe )
THE HON JOSEPH F ANDERSON. IR
APPEARANCES
FOR THE PLAINTIFFS
FOR THE DEFENDANT
Uo oS DISTRICT JUDGE
COLUMBIA.S C
NOVEMBER 2°. 1995
VOLUME \
TRANSCRIPT OF NON-JURY TRIAL
BRUCE} TERRIS. ESO
MARK V DUGAN. ESO
1121 12'" STREET, NW
WASHINGTON. D C = 20005
JAMES S CHANDLER.JR . ESO
PrP oO BOX 279
PAWLEYSISLAND.S (€ DOSES
ROBERT GUILD. ESO
414 PALL MALI
COLUMBIA,S C2920)
MICHAELS THWAITES. ESO
DONALD A COCKRILL. ESQ
KRISTOFER K STRASSER. ESQ
PO BOX I7S7
GREENVILLE. S C 2960?
66
3 0).1697-17
(1)
[5-99]
AS LATE AS WE CAN CONVENIENT WITH YOUR
OWN SCHEDULE, OF COURSE, SO WE DON’T END
TOMORROW AND FIND THAT WE GOT ---
THE COURT: WE NEED TO PUT IN A FULL
DAY TODAY. YES. SIR. WE WILL BE IN RECESS.
(LUNCHEON RECESS).
THE COURT: ALL RIGHT, I'M READY TO
PROCEED. DID YOU HAVE ANY ADDITIONAL
QUESTIONS OF THIS LAST WITNESS?
MR. THWAITES: NO, YOUR HONOR.
THE COURT: CALL YOUR NEXT WITNESS.
PLEASE.
MR. COCKRILL: THE DEFENDANT WOULD
CALL DR. SAM WHITE.
THE CLERK: PLEASE COME FORWARD TO BE
SWORN.
SAM WHITE. SWORN
DIRECT EXAMINATION
BY MR. COCKRILL:
Q. DR. WHITE, WHAT IS YOUR WORK
ADDRESS?
A. | WORK ADDRESS IS WITH RMT IN
GREENVILLE, SOUTH CAROLINA. IT’S 100 VRDAE
BOULEVARD IN GREENVILLE.
Q. | WHAT IS YOUR PRESENT JOB?
A. | I'M THE PROGRAM MANAGER FOR
WASTEWATER FOR RMT.
Q. AND WHATIS RMT?
A. | RMTIS A FULL SERVICE ENVIRONMENTAL
CONSULTING ENGINEERING FIRM.
Q. AND THEY ARE LOCATED WHERE?
GREENVILLE?
A. | THE SOUTHEAST REGION OFFICE IS IN
67
[5-99]
GREENVILLE -- AMI NOT
[5-141]
Q. ON AN ONGOING BASIS? ARE THEY IN
COMPLIANCE WITH THE PERMIT NOW. AS FAR AS
YOU KNOW?
A. | WILL SAY IN SUBSTANTIAL COMPLIANCE.
Q. WHAT DO YOU MEAN --
A. THERE ARE -- | THINK OVER THE PAST YEAR
THERE HAVE BEEN TWO OR THREE EXCURSIONS
BEYOND THE |. 3 THAT I'M AWARE OF.
Q. AND THAT'S IN THE PAST YEAR?
A. CORRECT.
QO. HAVE THEY TAKEN SPECIAL STEPS TO STAY IN
COMPLIANCE?
A. YES. THEY HAVE. AT BOTH ENDS OF THE
PLANT. AS WAS DISCUSSED IN EARLIER TESTIMONY
THIS MORNING.
AT THE TAIL END OF THE PLANT THEY
HAVE ADDED ON TWO OR THREE LEVELS OF
TECHNOLOGY THAT DID NOT EXIST BEFORE. THAT
WAS THE POINT OF DISCUSSION OF A NUMBER OF
THE PILOT TESTS THAT WERE DONE RECENTLY. AND
NOW THE PERMIT TO CONSTRUCT AND ACTUALLY
THE INSTALLATION OF FILTERS. CARBON, ION
EXCHANGE. ALL THOSE TECHNOLOGIES THAT WERE
DISCUSSED. | THAT’S ON THE TAIL END OF THE
PLANT. THOSE ARE THE STEPS THEY HAVE TAKEN
OVER AND ABOVE WHAT IS TYPICALLY DONE BY
ANYBODY -- THOSE ARE ALL TERTIARY TREATMENT
-- ADVANCED WASTE TREATMENT TECHNOLOGY.
TYPICALLY ONLY ONE OF WHICH IS SELECTED AND
INSTALLED AT A LOCATION. THAT'S ON THE TAIL
END.
68
[5-141]
ON THE FRONT END OF THE PLANT I
UNDERSTAND THAT THEY HAVE RESTRICTED THE
LOAD OF MERCURY THAT IS ALLOWED TO BE
BLENDED AND INTRODUCED INTO. THE
INCINERATOR. SEVERELY
[5-142]
RESTRICTED BEYOND WHAT THEY OTHERWISE
WOULD BE ALLOWED TO PUT INTO THE
INCINERATOR.
Q. DOES LAIDLAW HAVE AN ALLOWABLE
LIMIT OF MERCURY THAT THEY CAN FEED INTO
THE WASTEWATER OR INCINERATE ON A DAILY
BASIS?
A. YES, THERE IS A RCRA LIMITATION THAT I
CANNOT CITE THE POUNDS PER DAY ON
MERCURY, BUT THERE IS A LIMITATION --
Q. ANDRCRAIS R-C-R-A, ALL CAPS, CORRECT?
A. EXACTLY.
Q. | WHATIS THAT? YOU DON’T HAVE TO GIVE
US THE FULL TITLE. IT’S FEDERAL LAW, THOUGH.
RIGHT?
A. EXACTLY. IT’S THE HAZARDOUS WASTE
MANAGEMENT REGULATIONS.
Q. SO, UNDER RCRA THEY HAVE SOME
NUMBER OF POUNDS THAT THEY ARE ALLOWED
TO INCINERATE ON A DAILY BASIS: IS THAT
CORRECT?
A. THAT’S CORRECT.
Q. AND ARE THEY INCINERATING THAT MUCH?
A. NO. THE RECORDS SHOW THAT FOR THE --
FOR THE PAST YEAR, AT LEAST THE PAST YEAR IN
QUESTION WHERE I CITED THERE MAY HAVE BEEN
TWO TO THREE VIOLATIONS OR EXCEEDANCES OF
69
a
[5-142]
THE 1. 3 PARTS PER BILLION LEVEL. IN THAT SAME
YEAR. JUST ON A ROUGH AVERAGE, THEY HAVE
BEEN INTRODUCING INTO THE INCINERATOR
APPROXIMATELY TWO TEN-THOUSANDTHS --
THAT’S TEN-THOUSANDTHS.
Q. _ 02 PERCENT?
A. EXACTLY. TWO TEN-THOUSANDTHS OF
WHAT THEY ARE ALLOWED TO ENTER INTO THE
INCINERATOR BY RCRA.
[3-143]
QO. IS IT YOUR UNDERSTANDING THEY ARE
TURNING AWAY SOME BUSINESS IN ORDER TO
STAY IN COMPLIANCE?
A. YES. THEY ARE.
MR. COCKRILL: THANK YOU, DR. WHITE.
THE COURT: WHY DON’T WE TAKE A MID
AFTERNOON BREAK AT THIS POINT?
LET’S TAKE A 15 MINUTE RECESS.
(SHORT RECESS).
THE COURT: ALL RIGHT, YOU MAY CROSS
EXAMINE THE WITNESS.
CROSS EXAMINATION
BY MR. TERRIS:
Q. DR. WHITE. GOOD AFTERNOON.
A. HELLO. :
QO. I’M CORRECT, AM I NOT, THAT THE PURPOSE
OF THE FISH STUDY WAS TO PERSUADE DHEC TO
INCREASE THE MERCURY LIMIT?
A. TO PROVIDE THEM TECHNICAL
JUSTIFICATION TO ALLOW THEM TO ESTABLISH A
HIGHER MERCURY NPDES LIMIT. YES.
Q. THANK YOU. THE WORK PLAN FOR YOUR
FISH TISSUE STUDY, IT PROVIDED THAT YOU
70
- a eae
5-143
WOULD USE THE HIGHEST TROPHIC LEVEL | |
ORGANISM COMMON TO ALL THREE SITES: ISN’T
THAT RIGHT?
A. CORRECT. THE HIGHEST TROPHIC LEVEL
COMMON TO ALL THREE AND AVAILABLE IN
SUFFICIENT NUMBERS TO DO WHAT WE SAID WE
WERE GOING TO DO WITH THE STUDY.
Q. WHAT I GAVE YOU WAS AN ACTUAL QUOTE.
THAT IT WAS -- IT’S
71
STATE OF SOUTH CAROLINA )
) IN THE COURT OF COMMON PLEAS
COUNTY OF SPARTANBURG )
South Carolina Department of )
Health and Environmental Contro!
Plaintft
)
)
)
} COMPLAINT
92-CP-42-1429
udiaw Environmental Services )
(TOC) ine )
Detendant )
INT N
l. This action is brought to enforce compliance
with the terms of a National Pollutant Discharge Elimination
System ("NPDES") permit issues to the Defendant pursuant to
the South Carolina Pollution Control Act, S. C. Code Ann.
$$ 48-1-10 ef seg
JURISDICTION
2 This Court has jurisdiction over this action
pursuant to S. C. Code Ann. § 15-7-30.
P LES
3. Plaintiff. Department of Health and
Environmental Control ("DHEC"). is an agency of the State of
South Carolina with responsibility for implementing the South
Carolina Pollution Control Act. S. C. Code Ann. §§ 48-1-10
et seg. . and the NPDES Permit Regulations , 24S. C. Code
Ann. Regs. 61-9. Plaintiff is empowered to bring this
action pursuant to § 48-1-50(4) of the South Carolina Pollution
Control Act.
4 Defendant. Laidlaw Environmental Services
72
tows ee. een
et
Stee we
ees Ae ee ee wy ee
(TOC). Inc. ("TOC"), a corporation doing business in the
State of South Carolina, operates a hazardous waste incinerator
located at 301 Railroad Street, Roebuck, Spartanburg County.
South Carolina.
F J OUN
5. TOC owns and operates a wastewater treatment
system as part of its Roebuck facility.
6. The facility is authorized to discharge treated
wastewater into the North Tyger River in accordance with the
provisions contained in NPDES permit No. $C0040517 issued
by DHEC on December 15, 1986. The NPDES permit was
modified on December 14, 1989, and again on July 23, 1990.
7. The NPDES permit was scheduled to expire on
December 31.1991. On June 28, 1991, Defendant applied to
renew its permit.
8. By letter dated July 1. 1991. Plaintiff
acknowledged receipt of Defendant's application of renewal of
its NPDES permit. Plaintiff's letter also states that
Defendani’s permit SC0040517 will remain fully effective and
enforceable pending issuance of the new permit. Defendant
therefore continues to operate under the terms of NPDES
permit SC0040517 issued December 15, 1986 and modified
December 14, 1989 and July 23, 1990.
9. Part Il. A and Part III. A. 7 inthe NPDES
permit establish. in part, effluent parameters and limitations
allowable for Defendant's treated wastewater discharge.
10. The NPDES permit issued to Defendant requires
monitoring and the submittal of Discharge Monitoring Reports
("DMRs") and Noncompliance Reports to Plaintiff.
ll. On September 7, 1988, Consent Order 88-47-W
was executed by the Commissioner of DHEC which required
Defendant to initiate corrective measures related to its
wastewater treatment system because DMRs submitted by the
Defendant revealed that the treated wastewater discharge did
not consistently achieve compliance with limitations in the
NPDES permit. The Consent Order also assessed a civil
penalty of $20.000. 00. This Consent Order administratively
expired on March 15, 1991.
12. Despite Defendant's’ efforts to control
discharges. Plaintiff has determined that DMRs submitted by
Defendant demonstrate that the discharge of pollutants in
excess of applicable effluent limitations has continued since
April. 1991.
CAUSE OF ACTION
13. The South Carolina Pollution Control Act
prohibits the discharge of pollutants except as in compliance
with provisions of a permit.
14. Defendant has failed to consistently comply
with the terms of its NPDES permit, thereby violating the
permit and the South Carolina Pollution Control Act.
15. Plaintiff is aware that Defendant has made
significant efforts to control the variability of certain
constituents in its treated wastewater discharge: however.
compliance with certain parameters in Defendant's NPDES
permit have not been consistently achieved.
CLAIM FOR RELI
WHEREFORE. Plaintiff prays for the following relief:
16. That the Court order Defendant to comply with
the terms and conditions of its NPDES permit and the South
Carolina Pollution Control Act.
17. That the Court issue an injunction ordering
74
Ce en
Defendant to install additional pollution control equipment
and/or make modifications to its wastewater treatment system
in order to meet applicable effluent limitations.
18. That the Court impose civil penalties for the
above-stated violations in an amount to be established taking
into account the following factors:
a. The seriousness of the violation:
b. The economic benefit (if any) resulting
from the violation;
c. The history of such violations;
d. Defendant’s good faith efforts to
comply with the requirements;
e. The economic impact of the penalty on
Defendant: and
f. Such other matters as justice may
require.
Dated this 9" day of June, 1992.
Respectfully submitted,
By:
Wilham A Ready
Staff Attomes
Walton) McLeod. I!
General Counsel!
South Carolina Department of Health
and Environmental Control
2600 Bull Street
Columbia. South Carolina 29201
(803) 734-4910
[CERTIFICATE OF SERVICE OMITTED IN PRINTING]
75
STATE OF SOUTH CAROLINA )
) IN THE COURT OF COMMON PLEAS
COUNTY OF SPARTANBURG )
South Carolina Department of
Health and Environmental Contro!
Plaintiff
CONSENT ORDER
AND DECREE
‘
Laidiaw Environmental Services
(TOC). Inc
Detendant
Sd ee a
WHEREAS. the Plaintiff, South Carolina Department
of Health and Environmental Conirol ("Department").
previously filed a complaint in this Court against Defendant.
Laidlaw Environmental Services (TOC), Inc. ("TOC"),
alleging violations of National Pollutant Discharge Elimination
System ("NPDES") permit No. $C0040517 and the South
Carolina Pollution Control Act;
WHEREAS. Plaintiff and Defendant agree that
settlement of these matters is in the best interest of the parties
and the public. and that entry of this Consent Order and Decree
("Consent Order") without additional litigation is the most
appropriate means of resolving this action;
WHEREAS. Plaintiff and Defendant, by their
authorized counsel and without trial or final adjudication of the
issues of fact or law with respect to Plaintiff's claims or
allegations. consent to the entry of this Consent Order to avoid
further litigation and to resolve the controversy between them:
WHEREAS. Plaintiff and Defendant stipulate that this
Court has jurisdiction of the parties and the subject matter
involved in this action:
WHEREAS, Section 48-1-50 of the South Carolina
Pollution Control Act. S. C. Code of Laws, Section 48-1-50,
enumerates the powers of Plaintiff and specifies that Plaintiff
76
has the authority to make, revoke, or modify orders, and
administer penalties for violation of the code, any order,
permit, regulation. or standard; ;,
WHEREAS, Plaintiff has considered all the allegations
raised in the pleading and the actions of Defendant, including
Defendant’s cooperation with Plaintiff and Defendant's
voluntary actions and efforts in the area of environmental
compliance, and believes the remedies required by this Consent
Order are appropriate and just; and
WHEREAS. Plaintiff recognizes that persistent efforts
have been made by Defendant, at considerable expense. to
evaluate and control the discharge of pollutants in excess of
current effluent limitations. | Among the efforts made by
Defendant are:
March-June 1989 Made numerous contacts with
Department personnel
regarding boiler blowdown.
wastewater, and flow-through
test.
June 1989 - Three trial studies to determine
March 199] the appropriate treatment
system. All data, progress
reports, engineering
assessments, and construction
progress reports were submitted
to the Department, which
concurred with the selection of
the treatment technology.
March 199] Metals removal system upgrade
made to the wastewater
treatment system at a cost of
77
March 199]
April 1991
May 1991
June 199]
June 1991
approximately $920,000 which
incorporated Best Available
Technology for removal of
metals.
Onsite office was established
for full-time Department
inspector who reviews all
monitoring records.
Meeting with Department to
discuss metals system removal
upgrade and mercury analysis
and removal.
Submittal of request to add iron
sulfate to wastewater treatment
system. (Department granted
request.)
Letter to Department requesting
relief from the permitted limit
for mercury in accordance with
the permit. (The limit for
mercury was decreased by the
Department in 1987 to its
present level.)
Submittal of the first semi-
annual macroinvertebrate
assessment of the North Tyger
River for 1991. (Assessment
indicates that wastewater
discharge from the facility is
78
July 199]
August 199]
September 1991
September 199]
‘October 199]
December 1991
not impacting the receiving
stream. )
Department internal
memorandum agreeing that the
final effluent discharge from
TOC has little impact on the
macroinvertebrate communities
of the North Tyger River.
Replacement of faulty seals in
the absorption filters.
Meeting with Department to
update efforts made and
findings reached regarding
mercury levels in effluent.
Conceptual proposal submitted
for site specific permit effluent
limit.
Department internal
memorandum stating that
conceptual proposal for site
specific permit effluent limit is
generally a _ reasonable
approach.
Second semi-annual
macroinvertebrate assessment
of the North Tyger River for
1991 indicates that the facility’s
wastewater discharge is not
79
impacting the receiving stream.
January 1992 Additional telephone
conversations with Department
concerning abnormal mercury
excursions. Department
indicated it believed TOC was
doing all it could to rectify the
abnormal mercury excursions.
February 1992 Final proposal submitted for a
site specific permit effluent
limit. Comments by
Department were addressed.
May 1992 Submittal of work plan
describing an investigation of
mercury in fish tissue collected
from the North and Middle
Tyger Rivers. The study was
approved by the Department
and initiation of the study has
begun.
NOW. THEREFORE, pursuant to Rule 41(a)(2) of the
South Carolina Rules of Civil Procedure, without trial of any
issue of fact or law, and without admission by Defendant of the
facts or violations alleged in the complaint, and upon consent
of the parties, and upon consideration of the mutual promises
contained herein, it is herby ORDERED, ADJUDGED, AND
DECREED as follows:
l. Plaintiffs Complaint against Defendant is
hereby dismissed.
80
2. The undersigned representative for each party
certifies that he/she is fully authorized by the party or parties
whom he/she represents to enter into the terms and conditions
of this Consent Order and to legally bind them to it.
3. This Consent Order shall apply to and be
binding upon the parties and their employees, members, agents,
successors, and assigns.
4. This Consent Order constitutes a full, fair,
reasonable, and complete settlement of the allegations
contained in the complaint filed in this case, and all other
claims covered by this Consent Order, including all claims
Plaintiff might have arising out of or in any way connected
with alleged violations of NPDES Permit No. SC0040517,
and is determined to be in the public interest and an appropriate
resolution of the facts which generated Plaintiff s complaint.
5. This Consent Order shall not constitute the
admission or evidence of any wrongdoing or misconduct or
liability on the part of Defendant. Nothing in this Consent
Order shall preclude or impair in any manner any agreements,
defenses, or arguments that might be raised by Defendant in
any other proceeding.
6. During the time period indicated above,
numerous communications, including telephone conferences,
written correspondence, and meetings, have occurred between
Plaintiff and Defendant pertaining to efforts being made by
Defendant regarding operation and/or upgrades to Defendant's
wastewater treatment system.
7. Defendant shall complete the fish tissue study
for mercury by August 1, 1992.
8. Within 60 days from the fish tissue study for
mercury, as described in paragraph number 7, Defendant shall
meet with Plaintiff to determine if a different effluent limitation
for mercury is justified and, if so, to initiate the proper steps to
modify the discharge permit.
81
9. Defendant shall ensure that the analyses are
performed on the same normal work day (Monday through
Friday unless a holiday) that a sample is collected unless prior
approval is obtained by Defendant from Plaintiff.
10. Defendant shall use every effort, to include but
not limited to the adjustment of the mercury-containing waste
feed rate, to achieve compliance with the limitation for mercury
in its permit and, depending upon any change in the limitation
resulting from the fish tissue study, shall submit to the Plaintiff
for approval additional plans to meet the limitation for
mercury.
11. In the event the Defendant discharges a
pollutant in an amount greater than 10 times the permitted
limitation, such discharge shall be reported to the Plaintiff
within 24 hours thereof.
12. For all permit violations which have occurred
up to the date of execution of this Consent Order, Defendant
shall pay to Plaintiff within thirty (30) days of receipt of this
fully executed Consent Order a civil penalty in the amount of
$100.000.
13. Failure by Defendant to comply with the terms
and conditions of this Consent Order shall constitute a violation
of the Pollution Control Act and shall subject Defendant to
additional enforcement action.
14. The sums to be paid under the terms of this
Consent Order shall constitute full settlkement and shall
completely discharge Defendant from any and all liability
under the South Carolina Pollution Control Act, S. C. Code
Ann. 48-1-10 ef seg. , or any other provisions of law arising
from (a) any and all discharges by Defendant which exceed the
limits set in its NPDES permit on or before the date this
Consent Order is approved and entered by the Court, (b) the
violations alleged in the Complaint, and (c) any and all
violations occurring during the period covered by this Consent
82
Order.
15. This Consent Order shall automatically
terminate and expire if and when Defendant achieves
compliance with any new permit limit based on paragraph
number 8 above or upon submittal of the additional plans, if
necessary, and achieve the limitations for mercury referred to
in paragraph 10 above.
SO ORDERED by the Court of Common Pleas on this
10" day of June, 1992.
Judge
AGREED:
By:
Date William A. Ready
Staff Attorney
Walton J. McLeod, Il
General Counsel
South Carolina Department of Health
and Environmental Control
2600 Bull Street
Columbia, South Carolina 29201
(803) 734-4910
By
Date Michael S Thwaltes
Philip L. Conner
Attomeys for Laidlaw Environmental
Services (TOC). Inc
Ogletree, Deakins, Nash, Smoak and Stewart
300 North Main Street
Post Office Box 2757
Greenville, South Carolina 29602
(803) 271-1300
83
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Friends or the Earth, Inc.. Citizens Local
Environmental Action Network. Inc . and Sierra
Club,
C/A No. 3:92-1697-17
Plaintiffs.
‘ FINDINGS OF FACT.
CONCLUSIONS OF LAW.
Laidlaw Environmental Services (TOC), Inc, AND ORDER
)
)
)
)
)
)
)
)
)
)
Defendant )
)
I. INTRODUCTION
Laidlaw Environmental Services (TOC), Inc.
(“Laidlaw”), owns and operates a hazardous waste incinerator
in Roebuck. South Carolina. As part of that facility, Laidlaw
maintains a wastewater treatment plant for water used in the
incineration process. Laidlaw discharges the treated wastewater
into the North Tyger River pursuant to a National Pollutant
Discharge Elimination System (“NPDES”) permit issued by the
South Carolina Department of Health and Environmental
Control (*DHEC’”).
Plaintiffs Friends of the Earth (“FOE”) and Citizens
Local Environmental Action Network, Inc. (“CLEAN”)'
brought this action on June 12, 1992 against Laidlaw pursuant
to the citizen suit provision in section 505 of the Federal Water
Pollution Control Act Amendments of 1972, commonly known
as the Clean Water Act, 33 U.S.C. § 1365. The Plaintiffs seek
to enforce Laidlaw’s NPDES permit and request declaratory
and injunctive relief, the imposition or civil penalties, and the
‘At the November 19. 1992 hearing in this action, the court granted the
Plaintiffs’ oral motion to join the Sierra Club as an additional plaintiff pursuant to
Fed. R. Civ. P. 21.
84
award of costs, including attorneys’ fees and expert witness
fees.
On July 1, 1992, the Defendant moved to dismiss the
Plaintiffs’ action, arguing that their citizen suit is barred by
section 505(b)(1)(B) of the Act, 33 U.S.C. § 1365 (b)(1)(B),
because DHEC had previously brought, and settled, a lawsuit
against Laidlaw for the same alleged violations of its permit.
The Plaintiffs responded by arguing that DHEC’s lawsuit did
not preclude the citizen suit because, inter alia, DHEC did not
“diligently prosecute” its action against Laidlaw. The court
heard oral argument on the Defendant's motion to dismiss at
the University of South Carolina School of Law on November
19, 1992.
In its order of December 14, 1992, the court denied the
Defendant's motion to dismiss, but ruled that the determination
of whether DHEC’s action constituted diligent prosecution
sufficient to bar the Plaintiffs’ citizen suit involved disputed
factual matters. Accordingly, the court decided to conduct a
separate evidentiary hearing on the preliminary issue of
whether the Plaintiffs’ citizen suit could proceed. The court
received a total of seven days of testimony on this matter in
October, November. and December of 1993. Thereafter. the
court requested the United States Department of Justice to file
a brief as amicus curiae setting forth the position of the United
States Environmental Protection Agency (“EPA”) on the issues
raised at the hearing. The Department of Justice submitted, on
behalf of the United States, two amicus briefs that generally
supported the Plaintiffs’ position.
After receiving all of the testimony, argument, and
memoranda from the parties, as well as the submissions from
the Department of Justice as amicus curiae, and after studying
the applicable law, the court makes the following findings of
fact and conclusions of law pursuant to Fed. R. Civ. P. 52. To
the extent that any of the following findings of fact constitute
conclusions of law. they are adopted as such, and to the extent
85
that any conclusions of law constitute findings of fact, they are
so adopted.
Il. FINDINGS OF FACT
A. Parties
The Plaintiffs, FOE, CLEAN, and the Sierra Club, are
non-profit corporations which bring this action on behalf of
their members to protect their environmental, health. economic,
recreational, and aesthetic interests in the quality of the North
Tyger River and waters downstream. .
The Defendant, Laidlaw, is a South Carolina
corporation which owns and operates a hazardous waste
incinerator (hereinafter “the facility”) in Roebuck, Spartanburg
County, South Carolina. As part of the facility, the Defendant
operates a wastewater treatment plant to treat water used in the
incineration process before discharging the wastewater into the
North Tyger River.
B. Chronology of Laidlaw 's Operation of Roebuck Facility
The Defendant purchased the facility from ABCO
Industries, Inc. (*ABCO”) in January 1986. During most of
1986, after it purchased the facility from ABCO, Laidlaw did
not have its own NPDES wastewater discharge permit; rather.
Laidlaw operated the facility temporarily under the permit that
had been issued to ABCO. On December 15, 1986, pursuant to
section 402 of the Clean Water Act, 33 U.S.C. § 1342, DHEC
issued to Laidlaw NPDES permit number SC0040517,
effective January 1, 1987, for the facility's wastewater
treatment plant. The permit authorized the Defendant to
discharge limited quantities of pollutants into the North Tyger
River in accordance with the conditions set forth in the permit.
The permit limited the Defendant's discharge of antimony,
86
arsenic, cadmium. chromium, copper, lead, mercury, nickel,
total organic carbon, and zinc. The permit also limited the flow.
temperature, and pH of the effluent from the Defendant's
facility. In addition, the permit imposed on the Defendant
several monitoring and reporting obligations, such as the
requirement to maintain discharge monitoring reports
(“DMRs”) and laboratory reports.
Several of the effluent limits in Laidlaw’s initial permit
were more stringent than those under ABCO’s permit. The
most significant reduction was in the mercury limit, which
DHEC proposed to reduce from 20 parts per billion (“ppb”)
under ABCO’s permit to 1.3 ppb. Because Laidlaw’s permit
contained such a dramatic reduction in the mercury limit,
DHEC imposed an interim mercury limit of 10 ppb from
January 1, 1987 to December 31, 1987, which decreased to 1.3
ppb on January 1, 1988.
In connection with the interim mercury limit, the permit
directed Laidlaw to conduct feasibility studies to determine
whether the 1.3 ppb limit could be achieved. In addition.
DHEC allowed Laidlaw the option of requesting a higher,
site-specific mercury limit upon completion of these feasibility
*On June 28. 1992. the Defendant applied for renewal of its NPDES permit.
DHEC issued to the Defendant a draft permit on June 29. 1992 proposing to lower
the Defendant's mercury limit to 1.1 ppb. According to the Defendant. DHEC
recalculated the |_| ppb limit to 1.25 ppb after the Defendant requested a reduction
in the wastewater flow rate from 220.000 gallons per day to 207.000 gallons per
day On September |. 1993. DHEC renewed the Defendant's NPDES permit and
imposed an adjusted mercury limitation of 1.25 ppb.
The parties have informed the court that the Defendant appealed the 1.25
ppb mercury limit in the renewed permit and that DHEC agreed to several revised
permit conditions. Specifically. DHEC’s revisions included changing the
Defendant's 1.25 ppb mercury limit from a daily maximum to a monthly average
maximum and raising the Defendant's maximum mercury limitation to 10 ppb. The
Plaintiffs have informed the court that they have requested an administrative hearing
regarding DHEC 's modifications to the Defendant's NPDES permit. This order does
not address the impact. if any. that the revised mercury limit would have on the
merits of the Plaintiffs’ lawsuit.
87
studies.
Faced with a drastic reduction in the mercury limit,
Laidlaw contracted with Environmental Technology
Engineering, Inc. (“ETE”), an environmental consulting firm,
in December 1986 to conduct an engineering feasibility study
to determine the best technological approach to achieving the
strict 1.3 ppb mercury limit. ETE initially evaluated eight
possible technologies and narrowed the focus to two
technologies--activated carbon and ion exchange--for bench
and pilot scale testing. ETE tested these technologies between
June and December 1987 and recommended the installation of
a second carbon adsorption unit to be run in series with
Laidlaw’s existing carbon unit. When the Defendant’s permit
was issued in December 1986, the facility's wastewater
treatment plant consisted of a neutralization system, a carbon
adsorption filter, and a cooling system. In early 1988 the
Defendant installed the second carbon adsorption unit. Because
of ETE’s recommendat‘on that the second carbon unit should
enable Laidlaw to m the 1.3 ppb mercury limit, the
Defendant chose not t. xercise its option of requesting a
higher mercury limit at that me.
Despite ETE’s testing, the additional carbon unit did
not allow the Defendant's facility consistently to achieve the
1.3 ppb mercury limit. The Defendant’s continuing problem
with mercury excursions came to a head in May 1988 after a
fish kill on the North Tyger River downstream of Laidlaw’s
facility. DHEC investigated the incident and determined that
the fish kill was caused by a pH upset at the Defendant's
facility. Thereafter, DHEC initiated an administrative
enforcement action, which culminated in a consent order with
Laidlaw on September 7, 1988. The consent order required the
Defendant to investigate treatment technologies that would
enable it to comply with the pH limits in its permit. In addition,
DHEC imposed on the Defendant a $20,000 penalty and
required the Defendant to replace the killed fish.
In response to the September 1988 consent order,
Laidlaw contracted with RMT, Inc., another environmental
consulting firm, to reevaluate the facility's wastewater
treatment system and to make recommendations for correcting
the problems Laidlaw was continuing to have with mercury and
other metals excursions. During the latter part of 1988, RMT
investigated four conceptual approaches to treating the effluent
from the Defendant's facility. In December 1988, RMT
submitted a preliminary engineering report to DHEC
recommending the testing of three metals removal systems,
trade named Unipure, Lancy, and Mem Tek, each of which
employed a different technology for metals removal. During
1989, Laidlaw and RMT conducted bench and pilot scale tests
on these three wastewater treatment systems.
Also during 1989, Laidlaw applied for and received
approval from DHEC to replace its two existing cooling towers
with a single, more advanced cooling system. The new cooling
system was necessary to eliminate occasional temperature
excursions that the Defendant experienced during the summer
months.
On December 28, 1989, Laidlaw submitted to DHEC
the results of RMT’s pilot testing. These results showed that,
among the three systems tested, the Lancy system was the most
likely to achieve the Defendant’s NPDES permit limits for all
metals, including mercury. As a result, Laidlaw selected the
Lancy system and requested approval from DHEC for its
installation. DHEC approved the Defendant’s request and
issued a construction permit on July 10, 1990.
During the latter half of 1990 and the first two months
of 1991 the Lancy system was constructed and installed at the
Defendant’s facility. Between February and July 1991, the
Defendant began full scale operation of the Lancy system.
The Lancy system brought the Defendant into
compliance with the non-mercury metals limits in the
Detendant’s permit. However, at least by April 1991, it was
89
clear that the Lancy system would not enable the Defendant to
comply with its mercury limit.
In responding to the continuing problems with mercury,
the Defendant worked with DHEC and Lancy to make
operational adjustments to the system in an effort to achieve
compliance with the mercury limit. When it ultimately became
apparent that mercury excursions were continuing to occur, the
Defendant put pressure on the manufacturer of the Lancy
system to correct the problem. Lancy responded by
recommending numerous testing procedures, including the
addition of varying amounts of iron sulfate, copper sulfate, and
free sulfide. These tests were unsuccessful, however, in
reducing the mercury content below the NPDES limit. Lancy
thereafter determined that achieving the 1.3 ppb limit was
problematic because it appeared that the level of metals being
introduced to the wastewater treatment system was simply too
low for the system to work effectively on mercury.
Because meeting the strict mercury limit continued to
be problematic, on June 26, 1991, the Defendant filed with
DHEC a request for a higher, site-specific limit for mercury.
During the latter part of 1991, and continuing into the early part
of 1992, Laidlaw both pursued its request for a higher mercury
limit and continued to perform tests and otherwise investigate
ways to achieve the 1.3 ppb limit. To support its request for a
higher mercury limit, the Defendant commissioned a study of
mercury levels in fish in the North Tyger River. DHEC found
the Defendant’s study to be inconclusive, however, and
informed the Defendant that the study did not meet EPA
criteria.
DHEC enforcement officials testified that they began to
consider taking additional enforcement action in early 1992,
after a series of abnormally high mercury violations at the
Defendant’s facility in December 1991. However, DHEC did
not commence its enforcement action until May 1992.
90
On April 10, 1992, the Plaintiffs sent a letter to the
Defendant, to the EPA, and to DHEC, informing them that the °
Plaintiffs intended to file a citizen suit against Laidlaw under
section 505 of the Clean Water Act after sixty days, or on or
after June 10, 1992.
DHEC initiated a formal enforcement action on May
21, 1992 by issuing to the Defendant a Notice of Enforcement
Conference. The fact sheet attached to the Notice of
Enforcement Conference stated that since April 1991 the
Defendant had committed 225 violations of the mercury limit
in its permit and two violations of the permit limit for
antimony. DHEC was unaware of any violations of the
Defendant’s permit other than those set forth in the fact sheet.
The violations set forth in the fact sheet were based on the
monthly DMRs submitted by Laidlaw. DHEC was unaware of
any violations of the monitoring or reporting requirements of
the Defendant’s permit.
On June 5, 1992, DHEC held an enforcement
conference with the Defendant. Subsequent meetings and
telephone conferences to negotiate a consent agreement
occurred later in the day on June 5, 1992, as well as on June 8.
1992. The parties reached a final consent agreement on June 8.
1992. On June 9, 1992, the Defendant filed a judicial complaint
in the Court of Common Pleas in Spartanburg County, South
Carolina, on behalf of DHEC. On June 10, 1992, a state circuit
judge approved the settlement of the DHEC lawsuit.
The Plaintiffs filed the instant lawsuit against Laidlaw
on June 12, 1992. The Plaintiffs have compiled lists of the
Defendant’s alleged permit violations from the Defendant’s
DMRs and laboratory reports. The Plaintiffs allege that Laidlaw
has had a long history of violations of its permit limits for
metals and pH. According to the Plaintiffs, since the Defendant
obtained its NPDES permit for the Roebuck facility it has
committed at least 1,044 discharge violations, some of which
allegedly continued until March 1993.
9]
The Plaintiffs’ lists of alleged violations show that the
Defendant’s most frequent violations have been of its limit for
mercury. The Defendant’s permit requires it to monitor for
mercury every day that the incinerator is in operation. The
Plaintiffs allege that the Defendant violated its mercury limit on
almost a daily basis from early 1991 until June 18, 1992. The
Plaintiffs also contend that the Defendant committed at least 3 1
discharge violations after the Consent Order with DHEC was
entered. In addition, the Plaintiffs allege at least 676 violations
of the permit’s monitoring requirements and 615 violations of
the permit’s reporting requirements.
After the Consent Order with DHEC was entered,
Laidlaw continued to explore additional technologies that
might help to remedy the mercury problems. The Defendant
experimented with various operational changes to the system
and performed various tests utilizing chemicals and
technologies both recommended by Laidlaw’s consultants and
developed internally by Laidlaw personnel. As the mercury
problems continued to be investigated, the Defendant had to
simply shut down the incinerator altogether for substantial
periods of time in July, August, September, and November
1992. in an effort not to violate either its mercury parameter or
the judicial consent order with DHEC.
The solution to meeting the 1.3 ppb limit was ultimately
achieved by Laidlaw personnel through experimentation
utilizing activated carbon, microfiltration, and ion exchange.
The Defendant discovered that adding activated carbon filters
at the end of the Lancy system effectively reduced the mercury
level below 1.3 ppb, so long as the Defendant limited the feed
rate of mercury-containing waste into the incinerator. The only
problem encountered with this configuration occurred when the
carbon adsorption filters were backwashed, as this procedure
tended to release extremely fine particulates into the
wastewater stream. Since any mercury-containing particulate
would likely violate the 1.3 ppb limit, Laidlaw added both a
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microfilter and an ion resin exchange unit after the carbon
filters to remedy this problem. The addition of the new
equipment, combined with the Lancy system and the other
components of the wastewater treatment system, has enabled
the Defendant consistently to achieve full compliance with all
of the parameters contained in its NPDES permit.
Following an extended period of demonstrated full
compliance, DHEC agreed to allow the judicial consent order
to expire. DHEC so notified the state court in a letter dated
August 6, 1993 from DHEC attorney William Ready.
C. DHEC'’s Judicial Enforcement Action
1. Decision to file judicial action
DHEC’s original intent in prosecuting the Defendant
for NPDES violations was to bring an administrative
enforcement action against the Defendant. In fact, DHEC’s
usual approach in bringing a formal enforcement action is to
issue a notice of enforcement conference and negotiate an
administrative consent order. After receiving the Plaintiffs’
sixty-day notice letter, however, Ralpi: Mellom, the
Defendant’s outside counsel, called Russell Sherer, Chief of
DHEC’s Bureau of Water Pollution Control, and inquired
whether DHEC would consider filing an action in court against
the Defendant. Sherer informed Mellom that DHEC had no
interest in filing a judicial action instead of proceeding with an
administrative action. Sherer stated, however, that DHEC
would agree to file an action in court if the Defendant would
expend any additional resources necessary to file a judicial
action.
On June 5, 1992, following the DHEC enforcement
conference, counsel for the Defendant telephoned DHEC and
requested that the agency file a judicial action instead of
proceeding with an administrative action. The Defendant’s
93
reason for requesting that DHEC file a judicial action was to
bar the Plaintiffs’ proposed citizen suit in federal court. DHEC
does not normally file judicial actions to enforce NPDES
permits. Indeed, Sherer testified that DHEC had filed judicial
actions in only two cases prior to filing the judicial action
against the Defendant and that, in each of the previous cases,
the defendant had requested that a judicial action be filed. Ear]
Hunter. the Director of the Division of Water Quality
Assessment and Enforcement in DHEC’s Bureau of Water
Pollution Control, testified that if the Plaintiffs had not sent a
sixty-day notice letter, DHEC probably would not have filed a
judicial action. Since DHEC must go to court to enforce either
an administrative order or a judicial consent decree, DHEC
gains no advantage by filing a judicial action instead of
proceeding with an administrative action. DHEC filed a judicial
action against the Defendant solely because counsel for the
Defendant requested that DHEC file a judicial action instead of
an administrative action.
2. Procedural aspects of DHEC’'s judicial action
At the direction of Mellom, Phillip Connor, an associate
with Mellom’s law firm, drafted the initial version of the
DHEC Complaint and of the Consent Order. On June 9, 1992,
the sixtieth day after the Plaintiffs sent their sixty-day notice
letter, Connor obtained the signatures from DHEC on the
Complaint and Consent Order and signed the Consent Order for
the Defendant. He then drove the Complaint and the Consent
Order to the courthouse in Spartanburg, where he filed the
Complaint and paid the filing fee for DHEC. He left the
Consent Order in the judge’s chambers, and the judge signed it
the next day. The Consent Order was entered at 9:34 a.m. on
June 10, 1992.
DHEC and the Defendant reached a settlement
agreement pertaining to the DHEC lawsuit on Monday, June 8,
94
1992, just one business day after the initial enforcement
conference. The time period from the enforcement conference
to the final settlement agreement was, by DHEC’s standards,
“exceedingly fast.” The usual time period from the date of the
enforcement conference to the date of a consent order is thirty
to forty-five days. Robert Knauss, the DHEC enforcement
officer with responsibility for the Defendant's facility, testified
that none of the cases in which he has been involved has moved
as quickly to final settlement as DHEC’s action against the
Defendant. Similarly, William Krecker, the Section Manager of
the Enforcement Division of DHEC’s Bureau of Water
Pollution Control, testified that, of the 100 to 200 enforcement
cases he had been involved in, none has been resolved as
quickly as DHEC’s action against the Defendant. Hunter
testified that the reason for the swiftness of the DHEC
proceeding was the Defendant's request that DHEC file a
judicial action and the deadline imposed by the Plaintiffs’
sixty-day notice letter. Sherer testified in 1990, in another case,
that citizen suits help bring about compliance and that DHEC’s
policy was not to file an action in court when requested to do
so by a defendant in order to bar a citizen suit. DHEC’s action
in this case violates this policy.
3. Substantive aspects of Consent Order
DHEC initially sought a penalty of $120,000 from the
Defendant. Knauss determined that DHEC would seek a
penalty of $120,000, because that amount was consistent with
past penalties obtained by DHEC. He testified that he
determined in his head the amount of the penalty to seek from
the Defendant and that he made no written record of how he
arrived at the figure of $120,000. Both Hunter and Krecker
approved the $120,000 penalty amount; however, neither of
them personally involved himself in the computation of the
penalty amount, each de “srring to Knauss regarding the details
95
of the penalty proposal. Hunter and Krecker also approved the
$100,000 penalty ultimately included in the Consent Order.
DHEC’s uniform enforcement policy, which was
approved by the DHEC board in December 1991, sets forth
several factors that may be considered in the assessment of civil
penalties, including “[e]conomic benefit as a result of
noncompliance.” DHEC, Uniform Enforcement Policy, at 3, €
3(d) (Dec. 12, 1991) (PI. Ex. 10). In addition, DHEC’s Bureau
of Water Pollution Control has a guidance document that
recommends a penalty of $1,000 for each discharge violation.
DHEC Bureau of Water Pollution Control, Penalty Assessment
Guidance, at 4 (Pl. Ex. 92). This amount may be adjusted
upward or downward depending on various mitigating factors,
such as mechanical problems, vendor problems, or inability to
pay. /d. at 4-5. No evidence has been presented that any of
these mitigating factors applied in this case. If a penalty of
$1.000 per violation had been imposed in this case, the penalty
based on the number of violations listed in the fact sheet
accompanying DHEC’s Notice of Enforcement Conference
would have been $227,000.
In considering the seriousness of a permittee’s
violations. DHEC uses the standard of whether the violations
were more than 1.4 times the permit limit. Knauss was aware
that most of the Defendant’s mercury violations were greater
than 1.4 times its permit limit for mercury. The DHEC penalty
guidance and policy documents were available to enforcement
staff at the time of the DHEC lawsuit.
DHEC made no attempt to calculate the Defendant's
economic benefit from noncompliance. Krecker testified that
he had no reason to believe that the Defendant had enjoyed any
economic benefit and that economic benefit was not a factor in
Knauss’s consideration. Also, Hunter testified that Knauss
considered, but did not calculate, economic benefit. However,
no DHEC enforcement personnel obtained the information
necessary to make an economic benefit calculation. DHEC did
96
not determine the capital costs or the operation and
maintenance costs of the wastewater treatment equipment
installed by the Defendant. According to Krecker, DHEC does
not normally make an economic benefit calculation in
proceedings to enforce NPDES permits.
Hunter testified that DHEC considers economic benefit
in conjunction with good-faith attempts at compliance and that
“economic benefit is usually derived from someone that just
ignores environmental laws and doesn’t want to place
equipment in place.” In this case, although the Defendant had
been in violation of its permit for five years by the time DHEC
brought it enforcement action in 1992, Krecker testified that he
did not consider the Defendant to have obtained any significant
economic benefit because the Defendant installed pollution
control equipment with the intent of being in compliance. Since
DHEC believed that the Defendant was attempting in good
faith to comply with its permit, DHEC did not deem economic
benefit to be an important consideration in calculating a penalty
against the Defendant.
On June 9, 1992, DHEC and the Defendant entered into
a Consent Order in which the Defendant agreed to pay a penalty
of $100,000. The Consent Order contains no injunction
requiring the Defendant to comply with its permit, but requires
only that the Defendant make “every effort” to comply.
Consent Order and Decree, at 5, { 10 (June 9, 1992) (Def. Ex.
167). Also, the Consent Order provides that “[t]he sums to be
paid under the terms or this Consent Order shall constitute full
settlement and shall completely discharge Defendant from any
and all liability .. . arising from . . . (c) any and all violations
occurring during the period covered by this Consent Order.” /d.
at 6.4 14. The Consent Order further provides that it “shall
automatically terminate and expire if and when Defendant
achieves compliance with any new permit limit based on
number 8 above or upon submittal of the additional plans, if
necessary, and achieve[s] the limits for mercury referred to in
97
paragraph 10 above.” /d. at 6, € 15.
Knauss testified that the Consent Order covered
violations that occurred after the date it was entered. Krecker
testified that DHEC’s normal practice is that violations which
‘occur after the date of a consent order are subject to additional
enforcement action. He further testified that he is aware of only
one case other than DHEC’s case against the Defendant, in
which DHEC’s settlement covered future violations. In that
case, however, the consent order provided for stipulated
penalties for future violations. William Ready, DHEC’s
attorney who worked on this case, testified that it is not
DHEC’s practice to settle future violations “except on the basis
of stipulated penalties.” He also testified that DHEC attempted
to include stipulated penalties in the Consent Order for permit
violations that occurred after the Consent Order was entered,
but did not insist them.
With the exception of Knauss, DHEC personnel
testified that they did not interpret the Consent Order to cover
permit violations that occurred after the date of the consent
order. Ready testified that he believed that DHEC could seek
penalties for violations occurring after the date of the Consent
Order based on paragraph 10 of the Consent Order, which
requires that the Defendant make “every effort” to comply with
its mercury limit. However, Ready admitted that, if paragraphs
14 and 15 of the Consent Order were interpreted to settle
violations occurring after the date of its entry but prior to its
expiration, the Defendant would have obtained a benefit that is
not extended to other dischargers in South Carolina.
The Consent Order also required the Defendant to
complete a fish tissue study. However, before the Consent
Order was entered, the Defendant was already planning to
conduct the fish tissue study to support its request for a higher
mercury limit. DHEC had no interest in having the Defendant
perform the fish tissue study.
98
All of the foregoing factors provide some evidence that
DHEC did not diligently prosecute its action against Laidlaw.
D. Economic Benefit of Noncompliance
The Defendant, as a holder of an NPDES discharge
permit, should not profit from noncompliance with that permit.
If DHEC assessed a penalty that was below the Defendant's
economic benefit of noncompliance, DHEC would not have
penalized the Defendant at all; instead, the Defendant would
have been rewarded for noncompliance with its permit.
Economic benefit is the after-tax present value of
avoided or delayed expenditures on necessary pollution control
measures. Economic benefit represents the opportunity a
polluter had to earn a return on funds that should have been
spent to purchase, operate, and maintain appropriate pollution
control devices. To determine a company’s economic benefit
from noncompliance with its permit, one must compare the
company’s cash flows associated with the delayed permit
compliance measures to what those cash flows would have
been if the company had obtained the necessary pollution
control equipment on time.
EPA describes the nature of the economic benefit
enjoyed by a firm that delays compliance with pollution control
laws as follows:
An organization's decision to comply with
environmental regulations usually implies a
commitment of financial resources; both initially, in
the form of a capital investment or one-time
expenditure, and over time, in the form of annual,
continuing expenses. These expenditures might result
in better protection of public health or environmental
quality; however, they are unlikely to yield any direct
economic benefit (i.e., net gain) to the organization. If
99
these financial resources were not used for
compliance. they presumably would be invested in
projects with an expected direct economic benefit to
the organization. This concept of alternative
investment; that is, the amount the violator would
normally expect to make by not investing in pollution
control. is the basis for calculating the economic
benefit of noncompliance.
As part of the Civil Penalty Policy, EPA uses
the Agency’s penalty authority to remove or neutralize
the economic incentive to violate environmental
regulations. In the absence of enforcement and
appropriate penalties, it is usually in the
organization’s best economic interest to delay the
commitment of funds for compliance with
environmental regulations and to avoid certain other
associated costs. such as operating and maintenance
expenses.
EPA. BEN User's Manual 1-6 (July 1990) (PI. Ex. 91).
Economic experts for both parties in this action testified
that whether a permittee proceeded in good faith is irrelevant to
economic benefit analysis. According to penalty guidelines
promulgated by both the EPA and DHEC, good faith is a
separate penalty factor to be considered when one determines
what the appropriate civil penalty should be.
Present-value analysis of economic benefit allows one
to express all cash flows as of a given date by accounting for
the time value of money--i.e., the fact that a dollar today is
worth more than a dollar tomorrow. To determine by how
much the value of a dollar of one year exceeds the value of a
dollar of another year, one must use a discount rate to calculate
the present value of money from the various time periods. The
discount rate, or “opportunity cost,” represents the return the
Defendant had the opportunity to obtain by investing the funds
100
it delayed or avoided spending on pollution control measures.
This rate can be used to move dollars through time and
determine the Defendant’s economic benefit as of a given date.
The court adopts the capital-asset pricing model as the
appropriate method for determining the Defendant’s benefit of
noncompliance. Under the capital-asset pricing model, the
discount rate is computed by using a risk-free component,
which is based on short-term United States Treasury Bills, and
a near-constant risk premium. Using the capital-asset prici
model, Dr. Michael Kavanaugh, the Plaintiffs’ sueaks
expert, determined that the appropriate discount rate for this
case 15.25%.’
The court finds that the economic benefit the Defendant
enjoyed by its failure to make timely expenditures for pollution
control equipment is substantially in excess of the $100,000
penalty amount as of July 1, 1992, the approximate date of the
Defendant's penalty payment to DHEC. Although the court
*Dr. Kavanaugh also calculated the Defendant's economic benefit using two
alternative discount rates. First. Dr. Kavanaugh performed the calculation using
18.1% as the discount rate. This was the rate that EPA used at the time of DHEC’s
lawsuit against Laidlaw in June 1992. Naturally. if the 18.1% discount rate were
—— ope benefit calculation. the Defendant's economic benefit as of
uly penalty payment date would be signi
calculated using the 15.25% rate. = oe
Second. Dr. Kavanaugh performed the economic benefit calculation using
11.9% as the discount rate. This is the rate that the EPA currently recommends. The
11.9% discount rate is based on a national average for a company’s weighted
average cost of capital, or WACC. WACC is a method of determining the cost of
capital to a company by combining the debt cost of capital and equity cost of capital
and weighing those costs based on the proportion of debt and equity in a company's
financial structure. WACC is therefore not based on the return an investor could
have earned on funds not spent on pollution control. but is a based on the cost of
obtaining the money. Since the point of removing economic benefit is to remove the
earnings that could be obtained by the discharger by not investing in the actions
needed for permit compliance. an equity rate. such as the 15.25% rate used by Dr.
Kavanaugh. is preferable to a WACC rate.
101
accepts Dr. Kavanaugh’s methodology or using the
capital-asset pricing model to determine a violator’s economic
benefit of noncompliance, the court declines, at this time, to
make a specific finding on the precise amount of the
Defendant's economic benefit.
The court's preliminary determination that the penalty
imposed by DHEC in the June 9, 1992 Consent Order failed to
recover the Defendant’s economic benefit of noncompliance is
based on the following delayed or avoided expenditures.
1. Neutralization and pH control equipment
The neutralization and pH control equipment that the
Defendant had in 1987 was inadequate, according to both Dr.
Bruce A. Bell. the Plaintiffs’ wastewater treatment expert, and
Dr. Thomas Keinath, the Defendant's wastewater treatment
expert. By late 1988, the Defendant had replaced its
neutralization system with adequate neutralization tanks, a PH
control system and freeze protection.’ The neutralization and
pH control system that the Defendant installed was necessary
for it to comply with both the metals and pH limits in its permit
that became effective on January 1, 1987. This system is
necessary for compliance with the metals limits because the
removal of metals is dependent on adequately controlling the
pH levels in the wastewater. As Dr. Bell testified, the
technology for neutralization and pH control has been available
at least since the 1960s. Therefore, the court finds that the
changes the Defendant made to its neutralization system in
1988 should have been made in time to comply with its metals
and pH permit limits that went into effect on January 1, 1987.
*The pH system consists of equipment that automatically controls the dose of
caustic soda to regulate the pH level in the Defendant's wastewater.
102
2. Lancy system
Dr. Keinath testified that the dual carbon filter system
that the Defendant had in place prior to 1991 did not enable the
Defendant to comply with the metals limits in its permit. Dr.
Keinath further testified that some metals which are regulated
in the Defendant's permit, such as arsenic and antimony, are
not easily removed with carbon treatment.
As noted earlier, the Defendant decided in late 1989 or
early 1990 to install the Lancy system. The Defendant began
operating the Lancy system in March 1991.
The Lancy system consists of equalization,
neutralization, sulfide addition, a retention tank, an adsorption
filter, and final PH control. According to both Dr. Keinath and
Dr. Bell, the Lancy system consists entirely of technology that
was available prior to 1987. Dr. Bell testified that the Lancy
system has been commercially available since at least 1984. Dr.
Keinath testified that, according to the 1985 text, /ndustrial
Wastewater Treatment Technology by Dr. James Patterson, the
technologies available for treatment of mercury in 1985 were
carbon adsorption and ion exchange. However, Dr. Patterson’s
chapter on mercury removal lists several technologies other
than carbon adsorption and ion exchange that were available
for mercury removal in 1985. The first technology that Dr.
Patterson notes as being available for mercury removal is
sulfide addition, which, he writes, can be combined with
filtration. Sulfide addition and filtration are the basic
technologies underlying the Lancy system. In addition, Dr.
Keinath testified that he believed that the Lancy system was
unproven technology for mercury removal in 1987. In fact, as
both Dr. Keinath and Dr. Bell testified, the Lancy system was
unable by itself to remove enough mercury to allow the
Defendant to meet the 1.3 ppb mercury limit. However, Dr.
Keinath also testified that the Lancy system “could well have
been utilized” in 1987 for treatment of metals other than
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mercury. Dr. Keinath further testified that the Lancy system had
in fact been installed by other dischargers before the Defendant
installed the Lancy system.
The court recognizes that the Lancy system “was not
available for off-the-shelf purchase in 1986, nor is it currently
available for off-the-shelf purchase; rather, the Lancy system
consists of technology which must be engineered and
manufactured specifically for the purchaser. Nevertheless,
according to both Dr. Keinath and Dr. Bell, the Lancy system
or its functional equivalent was necessary for the Defendant to
comply with the non-mercury metals limits in its permit that
went into effect on January 1, 1987. The Lancy system or its
functional equivalent also would have enabled the Defendant
to comply with the 10 ppb mercury limit that was in effect from
January |, 1987 to December 31, 1987. Therefore, the court
finds that the Defendant should have installed the Lancy system
or its equivalent by January 1, 1987.
3. Additional mercury-removal equipment
As noted previously, the Lancy system brought the
Defendant into compliance with the non-mercury metals limits
in its permit, but was unable to achieve the 1.3 ppb mercury
limit. In 1992 and 1993, the Defendant installed additional
equipment, including carbon adsorption equipment, prefilters,
ion exchange equipment, and microfiltration, to remove
mercury from its wastewater. In July 1992, the Defendant
installed new carbon adsorption equipment. Also, in January
1993. the Defendant installed prefilters, which: ~* necessary to
protect the carbon adsorption equipment. Finally, in April
1993, the Defendant installed ion exchange equipment, as well
as microfiltration equipment to remove small particulate
mercury formed during the sulfide precipitation process in the
Lancy system.
Dr. Keinath testified that he believes that the Defendant
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could comply with its permit with only the Lancy system and
microfiltration and that the carbon adsorption filters and ion
exchange equipment that the Defendant installed were
“redundancies.” However, Dr. Keinath also testified that both
carbon adsorption and ion exchange equipment remove some
mercury, that the Defendant’s mercury violations continued
until after this equipment was in place, and that he was
uncertain whether the Defendant could actually comply with its
permit without the carbon adsorption and ion exchange
equipment.
When the Defendant applied for a permit to construct
activated carbon equipment, it stated that such equipment
would “further reduce mercury concentrations to below 1.3 ppb
in the wastewater discharge.” The Defendant’s activated carbon
equipment in fact worked well to remove mercury from the
Defendant's wastewater. Furthermore, when the Defendant
applied for a permit to construct ion exchange equipment, it
stated that, in conjunction with microfiltration, such equipment
“will ensure compliance” with the Defendant’s mercury limit.
The Defendant’s ion exchange equipment also worked well to
remove mercury from the Defendant’s wastewater. The carbon
adsorption filters and ion exchange equipment are designed to
remove soluble mercury from the Defendant’s wastewater. A
test conducted by the Defendant on actual effluent from the
Lancy system showed that soluble mercury in concentrations
greater than the Defendant’s permit limit for mercury
sometimes passes through both the Lancy system and the
microfiltration equipment. The carbon adsorption and ion
exchange equipment are therefore necessary to enable the
Defendant to comply with its permit limit for mercury.
All of the mercury removal equipment that the
Defendant installed in 1992 and 1993 was necessary to ensure
the Defendant’s compliance with the 1.3 ppb mercury limit. All
of this mercury removal technology was commercially
available before the Defendant purchased the facility in 1986.
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Therefore, the court finds that the Defendant should have
installed the additional mercury removal equipment by January
|. 1988, in order to satisfy the mercury limit in its permit.
In summary, to comply with its permit the Defendant
should have installed by January 1, 1987 all of the equipment
that is currently in place. or its functional equivalent, with the
exception of the equipment that was designed specifically for
mercury removal. The Defendant should have installed the
remaining mercury removal equipment, or its functional
equivalent, by January 1, 1988.
The Defendant realized a significant economic benefit
by taking seven years to achieve compliance with its NPDES
permit limits. Although Dr. Keinath testified that each of the
individual wastewater treatment measures undertaken by the
Defendant was logical. the Defendant profited by operating its
facility for seven years despite continuing permit violations. In
other words, the Defendant is better off now, even after paying
the $100,000 penalty, than it would have been had it made the
expenditures necessary to comply with its permit in a timely
fashion or had it simply shut down the facility until compliance
were possible.
Ill. CONCLUSIONS OF LAW
Congress enacted the Clean Water Act (“CWA” or “the
Act”) in 1972 “to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C. §
1251 (a). To achieve the stated goals of the Act, section 301 (a)
makes unlawful the discharge of any pollutant into any
navigable waters, except as specifically authorized by certain
enumerated sections of the Act. 33 U.S.C. § 1311 (a).
One of these exceptions is section 402, 33 U.S.C. §
1342. which establishes the National Pollutant Discharge
Elimination System (“NPDES”). Pursuant to section 402(a), or
106
a a ae
pursuant to a state program authorized under section 402(b), the
appropriate regulatory authority may issue permits that allow
the holder to discharge pollutants in accordance with the
conditions and limitations set forth in the permit.
The holder of an NPDES permit who fails to comply
with the conditions of its permit may be subject to
administrative, civil, or criminal sanctions. 33 U.S.C. § 1319.
Permits issued under a state NPDES program are subject to
both federal and state enforcement actions. See id; 33 U.S.C.
§ 1342(b)(7). In addition, section 505 of the CWA authorizes
private citizens, under certain circumstances, to bring civil
actions to enforce any effluent standard or limitation under the
Act, including NPDES permits. 33 U.S.C. § 1365(a)(1).
Section 505(b)(1) provides two significant limitations
on acitizen’s right to bring a citizen enforcement suit under the
CWA.° First, under section 505(b)(1)(A), the citizen must
provide notice of the alleged violation to the Administrator of
*Section 402(a) grants to the Administrator of the EPA the authority to issue
permits for the discharge of pollutants in accordance with the conditions. as set forth
in each permit, that the
Administrator determines are necessary to carry out the provisions of the CWA. 33
U.S.C. § 1342(a). Section 402(b) authorizes each state to establish and administer
its own NPDES program, subject to the approval and continued monitoring of the
Administrator. for navigable waters within the state's jurisdiction. 33 U.S.C. §
1342(b). After a state's NPDES program receives approval under section 402(b). the
Administrator suspends the issuance of federal NPDES permits as to the navigable
waters subject to the state program, unless the Administrator determines that the
State program fails to conform to the guidelines established pursuant to the Act. 33
U.S.C. § 342(c)(1).
South Carolina has established its own NPDES program pursuant to
section 402(b). On June 10. 1975, the Administrator of the EPA delegated to DHEC
the responsibility for administering the NPDES program in South Carolina. See 57
Fed. Reg. 43,734 (Sept. 22. 1992).
®In addition, as provided by section 505(a), 33 U.S.C. § 1365(a), citizen suits
may also be limited by section 309(g)(6). 33 U.S.C. § 1319(g)(6). However. the
Defendant has not asserted that any of the provisions or section 309(g)(6) apply to
this case.
107
the EPA, to the state enforcement agency of the state in which
the alleged violation occurs, and to the alleged violator at least
sixty days before the citizen may file a citizen suit. 33 U.S.C.
§ 1365(b)(1 (A). Second. section 505(b)(1 )(B) provides that no
citizen suit may be commenced “if the Administrator or State
has commenced and is diligently prosecuting a civil or criminal
action in a court of the United States, or a State to require
compliance with [the same NPDES permit].” 33 U.S.C. §
1 365(b)(1 (B).
In the matter currently before the court, the Defendant
contends that section 505(b)(1)(B) precludes the Plainuffs’
lawsuit because, it argues, DHEC “diligently prosecut{ed]” an
enforcement action against Laidlaw in South Carolina state
court on June 9, 1992, which action was settled by judicial
consent order on June 10, 1992.
The Plaintiffs raise several arguments in opposition to
the Defendant's contention that their citizen suit is barred under
section 505(b)(1)(B) by DHEC’s lawsuit against the Defendant.
The Plaintiffs initially argue that section 505(b)(1)(B) bars the
commencement of a citizen suit only while a state or federal
enforcement action is pending, but not after that action has
been concluded. In other words, the Plaintiffs urge the court to
interpret section 505(b)(1 )(B) only to prohibit citizen suits and
federal or state enforcement suits from proceeding
simultanec..:!y she Plaintiffs assert that section 505(b)(1 )(B)
does not bar their action because DHEC’s action against
Laidlaw in June 1992 was settled before the Plaintiffs
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