Amicus Curiae Brief — Friends of Earth v. Laidlaw Environmental Services

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Text

No. 98-822

gents Ui ERK

Ju the Supreme Court of the United States

OCTOBER TERM, 1998

FRIENDS OF THE EARTH, ET AL.,

PETITIONERS,

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

RESPONDENT.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE STATE OF SOUTH CAROLINA

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT

CHARLES M. CONDON

Attorney General for the

State of South Carolina

KENNETH P. WOODINGTON

Counsel of Record

Senior Assistant Attorney General

Post Office Box 11549

Columbia, South Carolina 2921]

(803) 734-3680

Counsel for Amicus Curiae, State of South

Carolina

TABLE OF CONTENTS

INTEREST OF AMICUS ......... cece ccccccecccsecceees ]

DORN ITE Soccccececccccecesccceeccesecoccccecccees 2

SUMMARY OF ARGUMENT ............000 cece ee eeeeee 6

GETS ce ceccceccccscccccceceseccvcccscccccscucs a

I. The Role of Citizen Suits Under

the Clean Water Act is Limited. ............ 10

Il. The State of South Carolina,

Not the Citizen Suit, Played

The Pivotal Enforcement Role. ............. 13

A. History of State Agency

Emfercement 2. ccc ccccccccccccces 13

B. Commencement of the Citizen

ee 14

C. The Trial Court Refuses to Dismiss

the Complaint ................00585 15

D. The Trial Court Denied Injunctive

Relief, But Imposed Additional

Civil Penalties ...........0..ee000- 18

E. Reversal by the Court of Appeals .... 20

GRTRENS cocccnccccedecceccecoccecccesceesecess 21

TABLE OF AUTHORITIES

Arkansas Wildlife Federation v. IC] Americas Inc.,

842 F. Supp. 1140 (E.D. Ark. 1993),

aff'd, 29 F.3d 376 (8th Cir. 1994),

cert. denied, 115 S. Ct. 1094(1995)) ............ 16

Conn. Fund for Environment v.

Contract Plating Co., 631 F. Supp. 1291

(ee 3. Beer 16

Connecticut Coastal Fishermen's

Association v. Remington Arms Co.,

777 F. Supp. 173 (D. Conn. 1991),

affd in part and rev'd in part,

989 F.2d 1305 (2d Cir. 1993) ............... 17

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.,

890 F. Supp. 470 (D.S.C. 1995) .... 10, 15, 16, 17

Friends of the Earth, Inc. v. Laidlaw

Environmental Services

(TOC), Inc., 956 F.Supp. 588

(D.S.C. 1997) ......... 3, 4, 5, 13, 14, 18, 19, 20

Gwaltney v. Chesapeake

Bay Foundation,

48 U.S. 49 (1987) .......... 8, 10, 11, 12, 13, 14

PIRG v. Powell Duffrvn

Terminals Inc., 913 F.2d 64 (3d Cir. 1990),

cert. denied, 498 U.S. 1109 (1991) .......... 17

—e a ed

Steel Co. v. Citizens for a Better

Environment, 118 S. Ct. 1003

ee cece eoeeesess 11, 19, 20

Supporters To Oppose Pollution, Inc.

v. Heritage Group, 973 F.2d 1320

Tee ec cee geedevececceces 17

STATUTES

i recs ec esécweccceces ce 8, 10

Ee 11, 15

S. Rep. No. 92-414, at64(1971) ...........0.0 cu ee. 8, 12

3n the Supreme Court of the United States

OCTOBER TERM, 1998

FRIENDS OF THE EARTH, ET AL.,

PETITIONERS,

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

RESPONDENT.

BRIEF FOR THE STATE OF SOUTH CAROLINA

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT

INTEREST OF AMICUS

The State of South Carolina has a unique interest in

this case. Neither the agencies of the State nor persons

doing business in the state should be subject to protracted

federal litigation once compliance with environmental

protection standards has been attained through

administrative measures and state court consent decrees.

Although the State is not a party to this case, South

Carolina's environmental protection agency played a central

role in the pre-litigation phase, and later found itself

defending its actions in federal court after entry of the

consent decree and long after respondent had fully complied

with its NPDES permit.

STATEMENT

This case arises out of efforts to regulate the mercury

level in the water discharges from an incinerator which the

respondent operated from the late 1980's through September

1998. The history of the respondent's discharges. and of the

varying standards which applied to them. is set forth in the

trial court's opinions. The relevant standards are

summarized below:

EPA standard since 1993

(or earlier) 200.0 ppb'

Standard applied to respondent

by State, 1988-1993 , 1.3 pph

Standard applied to respondent

by State, 1993-1998

(plant closed in 1998) 10.0 ppb

Standard for drinking water 2.0 ppb

Discharges in excess of 10 ppb

(new standard), 1991-92 14

Discharges in excess of 10 ppb

(new standard), 1993-1995- 0

' Parts of mercury per billion.

? 1995 is the last year for which information is in the record.

As the above history indicates, hindsight indicates

that there has never been a substantial problem with

compliance with the standard ultimately applied to this

facility. The standard which the State applied to the

respondent in this case from 1988 through 1993 or 1994 was

1.3 ppb. EPA concluded in 1993 or earlier that much

higher mercury levels (200 ppb) would be adequate to

protect the environment. To put this in context, the standard

for drinking water is 2 ppb. As a result, the State's initial

permit limit was so strict that it required the respondent's

discharge at the pipe. even before diluted by the river. fo

contain 25% less mercury than is permitted in drinking

water. Even the State’s revised standard, which began to

apply in 1993. was only 10 ppb. one-twentieth the number

which EP.\ has found acceptable.

Plaintiffs point to 489 occasions where the

respondent's discharges exceeded the standard in effect at

the time of monitoring. However, an examination of the

detailed chart in the district court's opinion, Friends of the

Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,

956 F. Supp. 588, 613-621 (D.S.C. 1997), shows that only

40 of those occasions involved a discharge in excess of 10

ppb, the standard which DHEC v'timately applied to this

discharge permit. Only 14 of these 40 excursions occurred

in 1991 or 1992. by which time the state environmental

agency had been closely involved with the respondent's

compliance for several years; the remaining 26 excursions

occurred in the late 1980's. Respondent’s operation never

made a discharge which was anywhere close to the limit of

200 ppb which is an allowable daily maximum under the

revised EPA Gold Book. Only four of respondent's

discharges over the years were over 30 ppb, and no

discharge was as high as 40 ppb.

The measured water quality of the North Tyger River

reflects the minuteness of the amounts of mercury

discharged. The district court concluded that various studies

conducted by the state agency and by the respondent all

showed “that Laidlaw’s actual discharges have [not]

resulted in harm to the North Tyger River.” 956 F.Supp. at

603. Far from resulting in harm. the discharges were so low

that, as the district court held. “no fish in the river has a

mercury level even one-quarter of a limit that is ten times

lower than necessary to protect human health.” /d. In other

words, even if the mercury level in fish in the river had been

40 times higher than what was measured. it still would not

have exceeded the level above which human health might be

affected. As a result of these findings of fact. the district

court concluded that “Laidlaw’s effluent. even with the

permit exceedances it has experienced, has had no

demonstrated adverse effect on the environment.” /d.

Despite the State's imposition of an exceedingly strict

mercury discharge standard. both originally and as amended,

the district court still concluded that the state environmental

agency was not “diligently prosecuting” an enforcement

action against Laidlaw. The agency thus managed to attain

the singular distinction of appearing both too stringent and

too lenient at the same time.

It is undisputed that, as the district court held,

respondent “has been in substantial compliance with all

parameters in its NPDES permit since at least 1992.” 956

F.Supp. at 611. The district court further held that in 1994

and 1995, the most recent years covered by the record, there

were only two “violations,” in the amounts of 2.7 ppb and

1.4 ppb, and that these, obviously, did not exceed the permit

limit of 10 ppb which would have been in effect by then but

for the plaintiffs’ state administrative appeal of the revised

State standard. /d. There was likewise only one discharge

in excess of 1.3 ppb in 1993, see 956 F. Supp. at 621, and

that discharge (1.6 ppb) was likewise well below the revised

standard of 10 ppb.’

Although the state agency had imposed a civil

penalty of $100,000 in 1992, based on violations of the

later-vitiated 1.3 ppb standard, and although the district

court concluded that “compliance with the prior, stricter

standard was not absolutely necessary to avoid

environmental harm,” 956 F. Supp. at 610. that court

nevertheless reviewed the penalty in detail and quadrupled

it to slightly over $400,000. At the same time, however. the

district court was satisfied that injunctive relief was not

necessary in view of the respondent's compliance. 956 F.

Supp. at 611. The citizen plaintiffs did not appeal the denial

of injunctive relief.

On September |, 1998, the last discharge of any sort

issued from respondent's facility. The waste disposal

system at the site, including the incinerator and the waste

feed systems, was removed and discarded. Respondent's

decision to cease incineration (which was based on market

conditions rather than the events in this case) was embodied

* The last evidence was taken in this case in July and August

1995. 956 F. Supp. at 592. The district court's order was delayed until

January 1997 because of the possibility that state administrative

proceedings might affect this case. Jd.

in an agreement between the respondent and the state

enforcement agency in June 1997. Asa result of the closure

of this plant, approximately 60 employees were terminated.

SUMMARY OF ARGUMENT

Congress intended that EPA and the States would

play the primary enforcement role in the protection of the

nation’s water ways pursuant to the Clean Water Act

(CWA). That is precisely what took place in this case.

Nevertheless, three individuals thereafter attempted to

elevate a CWA “citizen suit™ to the primary enforcement

role placed in the hands of South Carolina, particularly its

Department of Health and Environmental Control (DHEC).

If petitioners are allowed to proceed with this case, CWA

citizen suits will provide citizens and federal judges the

opportunity to relitigate and second-guess the enforcement

and permitting actions of South Carolina and other States,

despite the bona fide decisions implemented in good faith by

the States. Such a result will undermine the careful

enforcement priorities established by Congress in the CWA

as well as the role South Carolina played in regulating the

facility at issue.

The State does not suggest that citizen suits are not a

worthy tool for protecting the environment. In many

situations, they may be the only tool available. On that

basis, the State welcomes citizen suits as a general matter.

However, Congress has decided that the federal courts

* The facts stated in this paragraph are taken from the May 21,

1999 Affidavit of Charisse G. McLeod filed in support of respondent’s

Suggestion of Mootness filed with this Court on June 9, 1999.

should not hear such cases under these circumstances. The

record in this case demonstrates that this citizen suit was

superfluous, and did not play any role in the enforcement of

the nation’s environmental laws regarding this facility. The

State of South Carolina invested six years of continuous

enforcement and permitting effort to ensure that the permit

holder achieved stringent and unprecedented permit

standards, imposed on Respondent an appropriate fine for

non-compliance, received state court approval of its

compliance plan and, most importantly, ensured that there

was not any harm to the environment from any of the

facility’s discharges. Of critical relevance to this case. these

environmental enforcement results were achieved in

response to the State’s actions before the mere filing of the

citizens ' suit. There can be no dispute that, in this case. the

public interest in vigorously protecting the environment was

well-served by the State's active enforcement role. a role not

shared by the citizen suit case brought by petitioners.

South Carolina, like many other States, works within

the system of environmental enforcement envisioned by

Congress under the CWA. The state agency played the

primary role envisioned by Congress and, through its

extensive activities, ensured that no harm came to the

environment. It is the States, along with EPA, that are

expected to set NPDES standards, issue permits, monitor

compliance and resolve non-compliance. To accomplish

this role, States are vested with enormous discretion to set

reasonable permit limits, negotiate resolutions to complex

environmental problems at a permitted facility, determine

appropriate fines and penalties and, in all events, balance the

equities in determining the public interest in a particular

facility's operations. It is a system that makes perfect sense.

Indeed, Congress recognized that state governments are in

the best position to assess the public inierest to fashion and

achieve environmental goals consistent with the public

interest in protecting the environment. S. Rep. No. 92-414.

at 64 (1971).

Given the critical role of the States, Comgicss

envisioned an important but much more limited role for

citizen suits where, as here. the State has taken the

enforcement lead. 33 USC. § 1365(b)(1)(A).

Appropriately, such suits essentially fill gaps left open by

States which, unlike South Carolina here, choose not to

carry out their enforcement role. But citizen suits were not

intended by Congress to intrude on state enforcement

efforts, or to second-guess enforcement decisions. That is

because they supplement, rather than supplant, the State's

enforcement role, as this Court noted over ten years ago.

Gwaltney v. Chesapeake Bay Foundation, 48 U.S. 49, 60

(1987).

Where citizen suits duplicate the efforts of active

state agencies, they contravene Congressional intent. In

such circumstances citizen suits no longer fill gaps left open

by inactive or unmindful state agencies. Instead, they mimic

enforcement actions meant to be conclusive, and create an

uncertainty in the enforcement arena. The result is that the

State’s role as the primary enforcement tool is undermined,

and its approach to enforcement is no_ longer

comprehensive, . efficient or cost-effective. The state

agency’s exercise of enforcement discretion — including, as

here, state court consent decrees and jurisdiction to enforce

such decrees —is seriously hampered by subsequent federal

judicial review through a citizen suit. Resolution of permit

once

ee ee

pa Nt

compliance issues through negotiation and open

communication with permit holders becomes much more

_ difficult. Consequently, pragmatic solutions to

environmental issues’ by state agencies will be frustrated.

Ironically, allowing such duplicative suits to proceed results

in waterways that are less protected because of the

confusion created by the uncertainty in the permit-holder’s

eyes as to whom they must look for enforcement guidance

and direction — the state agency or the federal court

litigation.

Such is the case here. The citizen suit currently

before the Court is the kind of duplicative, intrusive action

that is inconsistent with the comprehensive scheme for

environmental protection envisioned by Congress.

ARGUMENT

In this case the Court has the opportunity to clarify

the circumstances under which citizens may act in an

“enforcement” role regarding alleged violations of federal

environmental laws. The constitutional parameters of such

Suits are addressed in the briefs of the parties and will not be

repeated here. Instead, amicus suggests that, in considering

these parameters, the Court should strike the appropriate

balance between the benefits of allowing private citizen

litigation to enforce the CWA and the strong public policy

of having States serve as the primary enforcement agencies

to resolve environmental pollution discharge problems. In

this case, that balance favors affirming the judgment of the

Court of Appeals and dismissal of the case.

1. The Role of Citizen Suits

Under the Clean Water Act is Limited.

In this case, the Court confronts a citizen suit brought

after a state agency had invested almost six years of

monitoring, investigating and cooperating with a NPDES

permit-holder to select appropriate equipment to achieve

stringent and unprecedented environmental standards. Two

days after a state court's entry of a consent decree (which

included a civil penalty consistent with its penalty policy)

petitioner citizen groups filed suit complaining that the State

had not “done enough” in its extensive pre-complaint

enforcement role. including the imposition of the $100.000

state court civil penalty. Tacitly acknowledging that their

eleventh hour attempt to obtain federal court jurisdiction

might not survive under this Court's decision in Gwaltney,

petitioners alleged that the state court consent decree and

$100,000 civil penalty somehow reflected a collusive and

fraudulent act by the State and respondent. As expressly

found by the trial court. however, there was no basis for

these charges. Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 890 F.Supp. 470, 489

n.14 (D.S.C. 1995).

The Clean Water Act provides that private citizens

may commence civil actions against a person who is alleged

to be in violation of the conditions of-a federal or state

NPDES permit. 33 U.S.C. § 1365(a)(1). At the same time,

however, there are important limitations on the rights of

citizens to bring such suits. Both Congress and the Court

have made clear that citizen suits cannot be brought (1)

where the State (or EPA) is “diligently prosecuting” a civil

or criminal action against the same permit holder (33 U.S.C.

§§ 1365(b)(1)(B)), or (2) the citizens seek to remedy

violations cured by the time the suit is brought. Gwaltney v.

Chesapeake Bay Foundation, 48 U.S. 49 (1987). More

recently, in a case brought under a similar environmental

Statute (the Emergency Planning and Community Right-To-

Know Act of 1986), the Court held that citizens do not have

Article II] standing to pursue civil penalties payable to the

United States Treasury. Stee! Co. v. Citizens for a Better

Environment, 118 S. Ct. 1003 (1998). Such civil penalties

were awarded by the trial court in this case, which as noted

below, denied all injunctive relief to petitioners.

| The Court first noted in Gwaltney that Congress

intended citizen suits to proceed under the Clean Water Act

only if “brought to enjoin or otherwise abate an ongoing

violation.” 484 U.S. at 59. Gwaltney made clear that “the

citizen suit is meant to supplement rather than supplant

governmental action.” /d. at 60. The Court found support

for its holding in the legislative history of the CWA. which

demonstrates that States were to be the primary enforcers of

the statute:

The Senate Report noted that “the Committee

intends the great volume of enforcement

actions [to] be brought by the State,” and that

citizen suits are proper only “if the Federal,

State. and local agencies fail to exercise their

enforcement responsibility.”

Id. at 60 (quoting S. Rep. No. 92-414, p. 64 (1971),

reprinted in 2A Legislative History of the Water Pollution

Control Amendments of 1972, p. 1482 (1973)).

Given the unmistakable intent of Congress, the Court

cautioned that citizen suits should not interfere with the

exercise of discretion by agencies entrusted with oversight

of environmental compliance:

Suppose . . . that the Administrator [of the

EPA] agreed not to assess or otherwise seek

civil penalties on the condition that the

violator take some extreme corrective action,

such as to install particularly effective but

expensive machinery, that it otherwise would

not be obliged to take. If citizens could file

suit, months or years later, in order to seek the

civil penalties that the Administrator chose to

forgo, then the Administrator's discretion to

enforce the Act in the public interest, would

be curtailed considerably. The same might be

said of the discretion of state enforcement

authorities. Respondents’ interpretation of the

scope of the citizen suit would change the

nature of the citizens’ role from interstitial to

potentially intrusive. We cannot agree that

Congress intended such a result.

Id. at 60-61. The record in Friends of the Earth presents in

concrete terms the hypothetical concern first raised in

Gwaltney. That record makes clear that this case should

never have been allowed to proceed.

Il. The State of South Carolina, Not the

Citizen Suit, Played The Pivotal

Enforcement Role.

A. History of State Agency Enforcement

ener ene enn

i The trial court allowed petitioners to pursue

injunctive relief and civil penalties for technical violations

by the NPDES permit-holder that had been the subject of

extensive state enforcement proceedings and two consent

decrees long before the citizen suit was filed. The

September 1988 consent decree was the culmination of

almost three years of state agency investigation, monitoring

and negotiation with the NPDES permit-holder. During that

time, the State agency imposed on Respondent a NPDES

permit with a mercury limit far more stringent than for its

predecessor — a reduction from 20 parts per billion (ppb) to

1.3 ppb for mercury.’ 956 F. Supp. 588, 593 (D.S.C. 1997).

Nonetheless, under the State’s watchful eye, Respondent

installed two different mercury reduction systems. and tested

three others. By March 1991 these technical measures met

the NPDES standard mandated by the State for all

parameters except mercury. /d. at 594-95.° Accordingly, in

early 1992, state officials began the initiation of an

enforcement proceeding for the continuing mercury

exceedances under the exacting standard. By June 9, 1992,

the State and Respondent had resolved their differences in

a consent agreement, including imposition of a $100,000

' To put this measure in perspective, 2 ppb for mercury is

allowable for drinking water. Ironically, if the facility had been new

and lacked a demonstrated record of meeting a strict discharge limit, it

could have obtained a NPDES permit with 200 ppb as the daily

maximum discharge limit for mercury.

* hit was a standard that one consultant characterized as an

“extremely difficult and complex problem,’ inasmuch as all available

manufacturer's information and reliable equipment on the market

demonstrated that current technology was capable of reducing mercury

only down to a range of 2 ppb to 5 ppb.” /d at 594.

fine payable to the State for the violations. On June 10,

1992, a state circuit court judge approved the settlement,

retaining jurisdiction to oversee the implementation of the

decree. /d. at 595.

B. Commencement of the Citizen Suit

The long-term involvement of the State ultimately

resulted in a meaningful method for resolving all the

pollution discharge problems. In fact, the trial court held

that the facility was in “substantial compliance” with its

NPDES permit requirements by March 1991 and was in

complete compliance by October 1992. With these facts in

mind, the citizen groups could not play any meaningful role

in the enforcement process under the CWA and Gwaltney.

However, on June 12, 1992, only two days after the entry of

the second consent decree — in which the state court had

taken jurisdiction over this very matter -- petitioners

commenced a CWA lawsuit.

C. The Trial Court Refuses

to Dismiss the Complaint

Given the administrative and state court history,

Responuent moved to dismiss the complaint under Section

505(b\ 1B) of the CWA (33 U.S.C. § 1365(b)(1)(B))

because the State of South Carolina had “diligently

prosecuted” the issue of its permit compliance. According

to the trial court, the issue raised by Respondent “involve[d]

a delicate be‘ance between the Act's preference for

governmental enforcement efforts and the recognized policy

of allowing citizens to participate in the enforcement

process.” 890 F. Supp. 470, 489 (D.S.C. 1995). In what

appears to have been a fundamental error, the trial court

looxed to EPA civil penalty policies as its “diligence

yardstick.” ’ It is the EPA’s policy that civil penalties must

recover at least the amount of the permit holder's “economic

benefit” of non-compliance. /d. at 493. On that basis, the

trial court determined

that because recoupment of a violator’s

economic benefit of noncompliance is central

to the enforcement of the CWA, the failure of

the state enforcement agency to recover, or

even to determine, a violator’s economic

benefit is strong evidence that the agency's

prosecution of that violator was not diligent .

Id. at 497.

On that basis, the trial court refused to dismiss the case.*

” “State enforcement programs are not required to be identical

to the federal program.” Environmental Law Handbook, T-F.P.

Sullivan at 151. In formulating the civil penalty amount here, DHEC

considered possible economic benefit to the respondent. See Trial

Testimony of Robert R. Knaus, DHEC enforcement staff, Bureau of

Water Pollution Control, Volume |, October 26, 1993.

* To its credit, however, the trial court recognized that it was

reading a new requirement into the CWA that could well disturb the

State's role as the primary enforcement actor:

The court agrees that no language in the CWA directly

requires a state enforcement agency to calculate

economic benefit when determining what an

appropriate civil penalty should be. In other words,

The trial court’s new requirement thus elevated the

citizen suit to a status equal to the State of South Carolina's

enforcement activities. even though, as the trial court

acknowledged, “[dJeference to governmental enforcement

agencies is appropriate because the CWA delegates the

primary enforcement responsibility to designated state and

federal agencies.” /d at 487.”

the CWA does not require states to replicate standards

or procedures for assessing penalties under the state's

water pollution control laws.

Id at 494.

* A number of other cases hold that the federal c gurts shoul

not entertain citizen suits in which the plaintiffs merely seek additional

civil penalties above and beyond those imposed in the state court

proceedings. Conn. Fund for Environment v. Contract Plating Co.,

631 F.Supp 1291, 1293 (D. Conn. 1986). See also Arkansas Wildlife

Fed'nv. ICI Americas Inc., 842 F. Supp. 1140, 1147 (E.D. Ark. 1993),

aff d, 29 F.3d 376 (8" Cir. 1994), cert. denied, 115 S. Ct. 1094 (1995)

(“the state [enforcement] agency must be given great deference to

proceed in the manner it considers in the best interests of all parties

involved”), Connecticut Coastal Fishermen's Ass nv. Remington Arms

Co., 777 F. Supp. 173, 179, 186 (D. Conn. 1991), aff'd in part and

rev d in part, 989 F.2d 1305 (2d Cir. 1993) (limitations on citizen suits

“allow for smoother operation of ordinary enforcement mechanisms”

and encourage out-of-court settlements between agencies and

polluters). Cf Supporters To Oppose Pollution, Inc. v. Heritage

Group, 973 F.2d 1320, 1324 (7 Cir. 1992) (Resource Conservation

and Recovery Act (RCRA) suit: “An Administrator unable to make

concessions is unable to obtain them. A private plaintiff waiting in the

wings then is the captain of the litigation.... To say .. . tha* the EPA

is not ‘diligently prosecuting’ the action if it does not sue the person,

or use the theories, the plaintiff prefers would strip the EPA of the

control the statute provides.”).

The trial court's reasoning pulled the rug out from

under the State of South Carolina’s good faith enforcement

efforts here, and left open to federal judicial review every

State compliance decision. Under this reasoning, there

always will be someone to complain that the penalty

imposed by a state agency or court was “insufficient.” As

acknowledged by the trial court here, the “determination of

economic benefit is susceptible to several different methods

of calculation.” Jd. at 497. See also PIRG v. Powell

Duffryn Terminals Inc.,913 F.2d 64, 80 (3d Cir. 1990), cert.

denied, 498 U.S. 1109 (1991) (“Precise economic benefit to

a polluter may be difficult to prove.”). Calculating the

amount of a civil penalty -- and the myriad of other

enforcement decisions that arise during the administrative

process -- necessarily involves the exercise of discretion that

is appropriately left to state agencies. Where. as here. there

was no evidence of untoward conduct or bad faith, the

State's judgment as to the appropriate state court penalty

and administrative technical solutions to the equipment

problems should not be subjected to federal judicial review

operating under “20-20 hindsight.”

D. The Trial Court Denied Injunctive Relief,

But Imposed Additional Civil Penalties

The trial court’s decision to allow the case to proceed

notwithstanding the State's enforcement role resulted in five

years of pointless litigation. Ironically, the trial court

ultimately denied petitioners’ request for injunctive relief but

assessed $405,800 in civil penalties in addition to the

$/00,000 fine previously imposed by the state court consent

decree. Id. at 612. All those years of litigation occurred

despite findings that Respondent's compliance record was

satisfactory, and that the State had properly and fully

performed its enforcement role under the CWA.

Specifically, the trial court found that

Laidlaw has been in substantial compliance

with all parameters in its NPDES permit since

at least August 1992. ... In fact, Laidlaw has

been in compliance with the vast majority of

its permit requirements for a much longer

period of time, extending back to March 1991

when the Lancy [mercury reduction] system

was installed.

Id. at 611.

Critical to the issues before this Court, the trial court

found that the state Department of Health and Environmental

Cox.trol (DHEC) had been instrumental in achieving this

commendable compliance record:

DHEC was made aware on a continuous basis

of the compliance problems Laidlaw was

experiencing. An open line of communication

between Laidlaw and DHEC existed

throughout the time period relevant to this

litigation. Further, DHEC’s knowledge of

these problems, its enforcement efforts with

respect thereto, and the agency's continued

involvement with Laidlaw in achieving a

solution to these problems have resulted in

Laidlaw’s ultimate compliance with its

NPDES permit over an extended period of

time.

Id. at 602.

Because of the good compliance record and the lack

of demonstrated harm to the environment, the trial court

denie¢ injunctive relief in all respects. Nonetheless, it

increased the civil penalty assessed by the State, thereby

second-guessing the state agency's enforcement decisions.

According to the trial court, the state penalty was "not

enough" of a penalty based solely on the amount of the state

court consent decree. That decision represents a wholesale

repudiation of the State’s enforcement role. Moreover, it

also became unnecessary in light of the Court's subsequent

decision in Stee/ Co.

E. Reversal by the Court of Appeals

Based on the trial court's ultimate findings after trial,

petitioner's case for injunctive relief was substantially moot

by June 1992 and certainly completely moot two months

later -- entirely as a result of the enforcement efforts of the

State. The Court of Appeals properly applied Stee/ Co. to

the civil penalty portion of the case and had little trouble

dismissing the rest of the case as moot where petitioners had

abandoned their injunction case on appeal.

The finding of mootness was well grounded, and

certainly can be affirmed for a variety of reasons found in

the record. As the trial court found, Respondent was in

compliance with "the vast majority" of its permit

requirements by March 1991 and with "all" its permit

requirements by August 1992. 956 F. Supp. at 611.

Furthermore, most of the pre-1992 permit exceedances

occurred while respondent -- with the State's knowledge and

under its supervision -- experimented with various

technologies to bring its plant into compliance. /d. at 600.

It was not surprising then that only nine isolated permit

exceedances occurred between June and August 1992, since

the State already had put in motion the measures necessary

to cure the technical discharge problems. /d. Those

exceedances likewise occurred during a period of

experimentation with various operational systems following

the state court’s entry of the first consent decree. Those

experiments eventually achieved a solution that met the 1.3

ppb mercury limit in the NPDES permit. /d. at 595. Thus,

the State's enforcement activity clearly resolved any type of

CWA problem that petitioners might have theoretically

alleged in their complaint, and certainly made unnecessary

at the very outset of the federal case the need for the

injunction sought by petitioners.

Finally, as noted in Respondent's Rule 21 Motion

pending before this Court, continuing state enforcement

activities have made the citizen suit even more superfluous.

Pursuant to a June 2, 1997 consent agreement with DHEC,

Respondent agreed to close the operations of the South

Carolina facility at issue based on economic reasons relating

to the hazardous waste incineration market and not this case.

Accordingly, the plant has not made any discharges under its

NPDES permit since September |, 1998, nor has it received

any waste from which to generate discharges. Indeed, the

incinerator that generated the plant’s effluent discharges has

been removed, and the plant put up for sale. The state

environmental agency has overseen this closure process, and

petitioners’ suit has had no impact on this closure process in

any manner. Simply put, this particular citizen suit has been

and remains a pointless exercise of federal court litigation.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,