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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A27

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 167

## 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,

v.

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.

2
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.

3

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

4
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

5

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.

6

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.

te

7

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

9

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

10

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

1]

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

12
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

13

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

4

' 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.

14

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

15

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,

16

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.”).

17

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

19
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

20

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

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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,

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 29211
(803) 734-3680

Counsel for Amicus Curiae, State of South
Carolina

July 19, 1999

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A27. Public record. Not legal advice.