# Joint Appendix — Friends of Earth v. Laidlaw Environmental Services > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2000 - **Citation:** 528 U.S. 167 ## Text No. 98-82? ee Supreme @ourt, US. » , EILE WAY 17 Eee me D 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 latte [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A09. Public record. Not legal advice.