Opposition Brief — Sierra Club v. Shell Oil Co.

No. 87-131 (9) ‘

In the

Supreme Court of the United Sf me us

October Term, 1987

SIERRA CLUB, FP 10 1987

Fetyeperoe. spaniot, up.

= CLERK

SHELL OIL,

Respondent.

SIERRA CLUB,

Petitioner,

v.

MONOCHEM, INC.,

Respondent.

SIERRA CLUB,

Petitioner,

Vv.

COPOLYMER RUBBER AND

CHEMICAL CORP., et al.,

Respondent.

RESPONDENTS’ OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Frank S. Craig, III* Tom F. Phillips*

BREAZEALE, SACHSE & WILSON TAYLOR, PORTER, BROOKS

Post Office Box 3197 & PHILLIPS

Baton Rouge, LA 70821 Post Office Box 2471

(504) 387-4000 Baton Rouge, LA 70821

Counsel for Allied Corporation, (504) 387-3221

Bercen, Inc. and Formosa Counsel for Monochem, Inc.

Plastics Corporation,

Louisiana, Inc. Burt Ballanfant*

Jose A. Berlanga

Robert S. Taylor* Post Office Box 2463

SWIDLER & BERLIN, Chartered Houston, TX 77001

3000 K St. NW, Suite 300 (713) 241-2233

Washington, DC 20007. Counsel for Shell Oil Company

(202) 944-4320

Counsel for Allied Corporation William R. D’Armond*

KEAN, MILLER, HAWTHORNE,

D’ARMOND, McCOWAN &

JARMAN

Post Office Box 3513

Baton Rouge, LA 70821

(504) 387-0999

Counsel for Copolymer Rubber :

* Counsel of Record & Chemical Corporation y

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 4} ri \

or call collect (402) 342-2831 me \

TABLE OF CONTENTS

Page

pet OP Fe Lae i) yy, yp : See eee i

TABLE OF AUTHORITIES ii

STATEMENT OF THE CASE 1

REASONS WHY SIERRA CLUB’S APPLICA-

TION FOR A WRIT OF CERTIORARI :

SHOULD BE DENIED ......................... 3

SUMMARY OF ARGUMENT .. oer ate ra res ote 3

I. The Decision Below Is Correct.

Gwaltney Is Erroneous. 5

II.

CONCLUSION

The Words ‘‘To Be in Violation’’ in 33 U.S.C.

§ 1365(a) Do Not Refer to Past Violations that

Cease Prior to the Commencement of the Law-

suit.

A. Effluent Limitations Are Established on a

Parameter by Parameter and Outfall by Out-

TORE I ict as

. “In Violation’? Means an Ongoing Violation

of an Effluent Limitation for a Particular

Parameter at a Particular Outfall. ow.

. The CWA Legislative seine Supports the

Decision Below.

. A Citizen’s Authority to Enforce the Clean

Water Act Is Not Coextensive With that of

the Government.

. The First and Fifth Circuits’ Interpretation

of the Words ‘‘In Violation’’ Is Required to

Avoid Serious Constitutional Questions. ..........

10

14

20

24

27

TABLE OF AUTHORITIES

Page

CasES

Allen v. Wright, 468 U.S. 737 (1984) 25

American Mining Congress v. Environmental Pro-

tection Agency, No. 85-1206 slip op. (D.C. Cir.

July 31, 1987) . ‘<i 19

American Petroleum Institute v. Environmental

Protection Agency, 661 F.2d 340 (5th Cir. 1981) ...... 23

American Tobaceo Co. v. Patterson, 456 U.S.

GS (1008) onc. 15

Anderson v. Liberty Lobby, Ine., — U.S. —, 106

B.0%t. S506 CO) i ee 6

Baker v. Carr, 369 US. 186 (1962) 26

Burlington Northern Railroad Co. v. Oklahoma

Tax Commission, — U.S. —, 107 S.Ct. 1855 (1987) .. 15

Chesapeake Bay Foundation and Natural Re-

sources Defense Council, Ine. v. Gwaltney of

Smithfield, Ltd., 791 F.2d 304 (4th Cir. 1986),

eert. granted, — U.S. —, 107 S.Ct. 872 (U.S.

January 12, 1987) No. 86-478 .............. PR AION sink RR passim

Chrysler Corporation v. Brown, 441 U.S. 281 (1979) .. 18

Consumer Product Safety Commission v. GTEH

Sylvania, Inc., 447 U.S. 102 (1980) 0 16, 18, 20

Dubois v. Thomas, 820 F.2d 948 (8th Cir. 1987) ............. 18

KE. I. du Pont de Nemours & Company v. Train,

450 OB. 153 (1011) nce 18

ill

TABLE OF AUTHORITIES—Continued

Page

Kagle-Picher Industries v. United States EPA,

759 F.2d 922 (D.C. Cir. 1985) 15

Environmental Protection Agency v. California

Ex Rel. State Water Resources Control Board,

426 U.S. 200 (1976) 9

Environmental Protection Agency v. National

Crushed Stone Association, 449 U.S. 64 (1980) ............. 9

FATIC a Ine. v. U.S., 768 F.2d 352 (D.C.

ESET ST SESE Re CRN 8 Beek, ee 14

FMC Corporation v. Train, 539 F.2d 973 (4th

ICED STS coh RU I Oc 23

Friends of the Earth v. Consolidated Rail Cor-

poration, 768 F.2d 57 (2d Cir. 1985) 12, 16

Garcia v. CECOS International, Inc., 761 F.2d 76

ETSI ES ee 2

Garcia v. United States, 469 U.S. 70 (1984) oo 16

Gladstone Realtors v. Village of Bellwood, 441

SRE ee 25

Hamker v. Diamond Shamrock Chemical Company,

Te ee ee eee Oe. Tee) 2, 3, 7, 14

I.N.S. v. Cardoza Fonseea, — U.S. —, 107 S.Ct.

Nee eal 15

Los Angeles v. Lyons, 461 U.S. 95 (1983) 20. 25

Marathon Oil v. Environmental Protection Agency,

er ee 22

Middlesex County Sewerage Authority v. National

Sea Clammers, 453 U.S. 1 (1961) — 17, 26

Monterey Coal v. Federal Mine Safety and Health

Review, 743 F.2d 589 (7th Cir. 1984) 16, 17

ieee

iv

TABLE OF AUTHORITIES—Continued

Page

National Association of Greeting Card Publish-

ers v. United States Postal Service, 462 U.S.

810 (1983) 19

Natural Resources Defense Council, Ine. v. Train,

510 F.2d 692 (D.C. Cir. 1974) ............... as

National Small Shipments v. Civil Aeronautics

Board, 618 F.2d 819 (D.C. Cir. 1980) 2. 15

Pawtuxet Cove Marina, Ine. v. Ciba-Geigy Cor-

poration, 807 F.2d 1089 (1st Cir. 1986), pet. for

cert. filed (U.S. March 17, 1987) (No. 86-1562) . passim

Regan v. Wald, 468 U.S. 222 (1984) 15

Richards v. United States, 369 U.S. 1 (1962) ww. 14

Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th

Cic. 1900) : a a 19

Rubin v. United States, 449 U.S. 424 (1981) 00. 14

Sierra Club v. Shell Oil, 817 F.2d 1169 (Sth Cir.

1987) PE EME Ans Oe eT oe RMP RE TOTS RCE passim

Sierra Club v. Train, 557 F.2d 485 (5th Cir. 1977) ..... 18

Simon v. Eastern Kentucky Welfare — Or-

ganization, 426 U.S. 26 (1976) .. RE AO re

Tennessee Valley Authority v. Hill, 437 U.S. 153

I ie ta coon seeeetstnaniceionbeetainsianegsaninchiarieepentniaceintwats 14

Tull v. United States, — U.S. —, 107 S.Ct. 1831

ah caiatsediegiatnaentinanitn alailScirisnganesatocs 21

United States Department of State v. Washington

ett Oe US ee TTT... 18

United States v. Locke, 471 U.S. 84 (1985) 2000... 14, 15

v

TABLE OF AUTHORITIES—Continued

Page

United States v. Oregon, 366 U.S. 643 (1961) WW... 14

United States v. Roger, 466 U.S. 475 (1984) 00. 14

Valley Forge Christian College v. Americans

United for Separation of Church and State,

Inc., 454 U.S. 464 (1982) 25

Wails v. Wastewater Resource Corporation, 761

F.2d 311 (6th Cir. 1985) 2

Warth v. Seldin, 422 U.S. 490 (1975) 25

Weyerhaeuser v. Costle, 590 F.2d 1011 (D.C. Cir.

1978) 12

Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981) ..... 5

CONSTITUTION

U.S. Constitution, Article IIT 24

STATUTES

F.R.C.P. 12(b) (1) 5, 6

28 U.S.C. 1345 91

28 U.S.C. 1355 21

SB: 6 ee ok ee eee sue, 21

ae DA. Cree ae eee 20, 21

33 U.S.C. § 1319(d) ......... 20, 21

3 USC. 418 1,9

33 U.S.C. § 1342(k) . g

TE UR Se skin eae 2, 8, 12, 21, 22

33 U.S.C. § 1365(a) .......... 1, 5,9

vi

TABLE OF AUTHORITIES—Continued

Page |

BB U.S.C. § 1365( 2) (1) nnneeeeenenenenennenenennrenenersmnen dO, 18, 16 |

33 U.S.C. § 1365(b) ......... ae 2 ,

33 U.S.C. § 1365(b) (1) (A) wis 6 teas ae

ke Ce FY me

REGULATIONS

40 C.PLR. § 122.41(1) (4) (4) coeeennnnnrnnrnen dO, 18

Sork ese 10

0 OFR. 4(18.40)(7) ———___ 10

AO CCF. § 122.44 (1) ener enna 13

Leoisuative Histories

A Legislative History of the Clean Air

I Ge Fe CE iaretiinnsiticttansitrniennininenin 17

A Legislative History of the Water Pollution

Control Act Amendments of 1972 (1973) 14, 16, 17, 19

RESPONDENTS’ OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Respondents, Allied Corporation ; Bercen, Inc. ; Copoly-

mer Rubber & Chemical Corporation; Formosa Plastics

Corporation, Louisiana, Inc.; Monochem, Ine.; and Shell

Oil Company, respectfully pray that the petition for a writ

of certiorari herein be denied.

This Court has granted a writ in Gwaltney of Smith-

field, Ltd. v. Chesapeake Bay Foundation, No. 86-473, which

presents nearly identical questions of law. The decision in

that case will, in all likelihood, affect the future of these

eases. Through this Opposition, Respondents seek to pre-

sent their arguments as to why the decision by the Court of

Appeals in Gwaltney was in error and as to why the petition

herein should be denied.

ty.

w

STATEMENT OF THE CASE

In the action below, the Sierra Club appealed three

separate judgments of two federal district courts dismiss-

ing the Sierra Club’s ‘‘citizen suits’’ against the six Re-

spondents for alleged violations of their NPDES (National

Pollutant Discharge Elimination System) permits issued

under the authority of the Clean Water Act (CWA), 3°

U.S.C. Section 1342. Suits against five of the Respondents

were dismissed for lack of subject matter jurisdiction, and

the sixth suit was dismissed on summary judgment. The

Court below [Sierra Club v. Shell Oil Co., 817 F.2d 1169

(5th Cir. 1987) Petitioners’ Appendix at 1 (hereinafter

‘« Shell Oil’’)] affirmed the district courts’ dismissals, but

not on jurisdictional grounds. Instead, it held that even if a

plaintiff has properly alleged an ongoing violation for pur-

1

2

poses of the citizen suit provision, 33 U.S.C. Section 1365

(a), but, on summary judgment, fails to demonstrate a gen-

uine factual issue as to whether a defendant is “in viola-

tion’’ when suit is filed, the plaintiff has failed to prove an

essential element of its cause of action and the court should +

grant judgment on the merits.

As part of a nationwide campaign of citizen enforce-

ment of the CWA, and after a scanty, generalized and out

of-date review, the Sierra Club sent Notices of Violation to

more than twenty Louisiana industries, including the six

Respondents. These Notices of Violation are required to

be sent to the alleged violator, the State, and the Environ-

mental Protection Agency (EPA), pursuant to 33 U.S.C.

Section 1365(b), at least sixty (60) days prior to the com-

mencement of any litigation. The purpose of the required

60-day notice is to allow EPA an opportunity to commence

enforcement proceedings, if warranted, and to allow the

discharger to come into compliance voluntarily and to

thereby avoid the citizen action.'

Subsequent to the Notices of Violation, these suits were

filed. During the pendency of these actions, the Fifth Cir-

cuit reached its decision in Hamker v. Diamond Shamyock

Chemical Co., 756 F.2d 392 (Sth Cir. 1985). Based upon tlie

Hamker decision, the defendants in the six cases challenged

the district courts’ jurisdiction over the Sierra Club’s en-

forcement actions. In each case, the defendants submitted

evidence to show that they did not commit any violations on

the dates the suits were filed and that they were not

‘‘chronic episodic’’ violators within the meaning of Judge

1Hamker v. Diamond Shamrock Chemicai Co., 756 F.2d 392, 396

(5th Cir. 1985); Walls v. Wastewater Resource Corp., 761 F.2d

311, 316-317 (6th Cir. 1985); Garcia v. CECOS International, Inc.,

761 F.2d 76, 82 (ist Cir. 1985).

3

Williams’ concurring opinion in Hamker. In each case, the

district courts found that the Sierra Club failed to produce

evidence that the defendants were ‘‘in violation.’’

On appeal, the Fifth Cireuit upheld the dismissal of

each of the cases and found that, 817 F.2d at 1173:

‘*the uncontradicted evidence in these cases demon

strated only past, sporadic or largely unconnected per

mit violations by each of the appellees. Not only was

none of the violations ongoing at the date Sierra

Club filed suit in either a ‘‘chronic episodic’’ or actual

sense, but Sierra Club never attempted to establish,

and in fact eschewed the possibility that there might be

any requirement of demonstrating the ongoing or

chronic nature of such violations. Sierra Club’s proof

failed to comport with its pleadings.’’

0-

REASONS WHY SIERRA CLUB’S APPLICATION

FOR A WRIT OF CERTIORARI SHOULD BE DENIED

Summary of Argument

The decision below and the decision in Pawtuzxet Cove

Marwna, Inc. v. Ciba-Geigy Corporation, 807 F.2d 1089 (1st

Cir. 1986) petition for cert filed (U.S. March 1987) no. 86-

1562, (hereinafter Pawtuxet Cove) are consistent and cdo

not conflict.2 The decision below is in conflict with the de

2 Indeed, the court below cited Pawtuxet Cove with approval,

Shell Oil, 817 F.2d at 1175, App. at 14, and in part relied upon it.

The Sierra Club has mischaracterized the holding in Pawtuxet

Cove in an attempt to find a conflict where none exists.

The holding in Pawtuxet Cove is that allegations in a com-

plaint “indicative of continuing or renewed violations justifying

an injunction, as distinguished from matters over and apparently

(Continued on following page)

4

cision of the Fourth Cireuit in Chesapeake Bay Foundation

& Natural Resources Defense Council, Inc. v. Gwaltney of

Smithfield, Ltd., 791 F.2d 304 (4th Cir. 1986), cert granted

— US —, 107 S.Ct. 872 (U.S. January 12, 1987) (No. 86-

473) (hereinafter Gwaltney).

This Court will shortly hear argument in Gwaltney. If

the Gwaltney decision is affirmed, the instant cases should

(Continued from previous page)

done with, that would not warrant one” are necessary for juris-

diction under the citizen suit provision. 807 F.2d at 1093-94.

This holding is fully consistent with the holding of Shell Oil.

After finding jurisdiction, the Shel! Oil court went on to

consider whether, based on the undisputed facts, the defendants

were entitled to summary judgment. This, the Pawtuxet Cove

did not do because it had dismissed the citizen suit for lack of

jurisdiction based on the allegations in the complaint.

In dicta, apparently relied upon by Sierra Club in order to

create a conflict between the circuits, Pawtuxet Cove made the

observation that, 807 F.2d at 1094:

A plaintiff who makes allegations warranting injunctive

relief in good faith, judged objectively, may recover a

penalty judgment for past violations even if the injunc-

tion proves unobtainable.

By “judged objectively,” the court clearly was referring to its

directions to the district courts earlier in the same paragraph:

In reviewing actions under this standard, the district

court should consider, among other things, the isolated

or recurrent nature of the infraction, the degree of

scienter on the part of the defendant, and the sincerity

of its assurances against future violations.

This is precisely the standard employed by the Shel/ Oil court in

evaluating whether, based on the undisputed facts, there was a

cause of action. All the Pawtuxet Cove dicta means is that it is

possible that there may be jurisdiction, and there may be a cause

of action, in a case where for a variety of reasons an injunction

proves unobtainable. In that event, civil penalties may still be

appropriate. This is an unexceptionable proposition, and noth-

ing in Shell Oil is to the contrary. Certainly, the nonexis‘ent

conflict between Shel! Oil and dicta in Pawtuxet Cove is not an

adequate basis for a grant of a writ of certiorari.

be remanded to the Fifth Cireuit for reconsideration in

light of such decision. If the decision in Gwaltney is re-

versed, as we believe it should be, then this writ should be

denied. Because of the central importance of Gwaltney,

this Opposition will address many issues pertinent to

the Court’s consideration of Gwaltney. It is respectfully

submitted that the decision in Gwaltney, holding that CWA

citizen suits are available for solely past violations, is sim-

ply incorrect, as set forth in both Pawtuaet Cove and the

decision below and for the reasons set forth in this opposi-

tion, infra.

I. The Decision Below Is Correct. Gwaltney Is Er-

roneous.

In its petition for certiorari, Sierra Club completely

misstates the decision by the Fifth Circuit below by argu-

ing that the Fifth Cireuit opinion was based upon juris-

dietional issues. In fact, as set forth in Section I of the

Opinion, the Court’s decision was based, not upon a lack

of jurisdiction, but upon the merits. As stated by the

Court, 817 F.2d at 1172:

Mie 5 [w]here the defendant’s challenge to the

eourt’s jurisdiction is also a challenge to the existence

of a federal cause of action, the proper course... is

to find that jurisdiction exists and deal with the objec-

tion as a direct attack on the merits of the plaintiff’s

ease.’ Williamson v. Tucker, 645 F.2d 404, 415 (5th

Cir. 1981) ..

As a result, when a plaintiff has alleged an ongoing vio-

lation for purposes of Section 1365(a), but he fails to

demonstrate a fact issue about whether a defendant is

‘in violation,’ the court should grant summary judg-

ment for the defendant on the merits under Fed.R.Civ.

P. 56, instead of dismissing for want of jurisdiction

under Fed.R.Civ.P. 12(b)(1)....

... Consequently, dismissing some of the cases for lack

of jurisdiction was tantamount to summary judgment

against Sierra Club on the merits of the critical issue of

appellee’s being ‘in violation’ when the actions were

filed. No reversible error follows from this procedural

flaw.’’

Holding that ‘‘in violation’’ is an essential part of the

cause of action and thus ‘‘material’’ within the mean-

ing of Rule 56, k'ederal Rules of Civil Procedure?, the Fifth

Circuit affirmed the district courts’ dismissals because the

Court concluded, after a careful and detailed factual review,

that defendants were not ‘‘in violation’’ at the time the

suits were filed and that there was no genuine issue as

to this material fact. Thus, the decision below had noth-

ing to do with jurisdiction, allegations in the complaint,

good faith pleadings, or similar matters. Sierra Club just

failed to demonstrate the existence of a genuine issue of

material fact essential to its cause of action.

Well pleaded allegations in a complaint that a dis-

charger is ‘‘in violation’’ may alone be sufficient to over-

come a I'ed.R.Civ.P. 12(b)(1) motion to dismiss for lack of

jurisdiction. However, as the Shell Oil court noted, that is

simply not enough. A plaintiff must thereafter submit evi-

dence that there is a material issue of fact as to whether

the defendant is ‘‘in violation’’ when faced with a Rule 56

motion for summary judgment, or the equivalent. I'ailure

to show the existence of this material fact issue results, as

3See Anderson v. Liberty Lobby, Inc., — U.S. —, 106 S.Ct. 2505

(1986).

7

it did in the cases below, with the dismissal of the suit; not

for lack of jurisdiction, but because plaintiff failed to create

a genuine issue regarding facts essential to its cause of ac-

tion.

A comparison of the language used by the Courts in

Pawtuxet Cove, Shell Oil, and the concurring opinion of

Judge Williams in Hamker makes it clear that the tests for

‘‘in violation’’ are essentially identical in each. One need

only to compare the injunction standards set forth in Paw-

tuxet Cove, the ‘‘chronie episodic violator’’ test defined by

Judge Williams in his coneurring opinion and the factual

analysis and its application to the term ‘‘in violation’’

in Shell Oil. None would allow private enforcement actions

to proceed where there were solely past violations. Each

would require an analysis of the nature and cause of the

violations and whether or not steps had been taken by the

discharger to remedy the situation such that the likeli-

hood of repetition of those violations was sufficiently

great to warrant the relief.‘

Under these analyses, if a discharger merely ‘‘turns

off the spigot’’ without taking any steps to correct the

underlying cause of the exceedences which make up the

continuing violation, it 1s ‘‘reasonable to believe that mis-

4The record is replete with examples of why the Sierra Club was

unable to prove that defendants were in violation “when suit

was filed.” For instance, Bercen, Inc. has not had any violations

from any outfall listed in the complaint since October, 1984,

over six months prior to suit being filed. Formosa Plastics had

been issued a new permit before suit was filed which had sig-

nificantly different effluent limitations than in the prior permit.

Thus, there is no reasonable likelihood that its previous exceed-

ences would continue. Copolymer tested 10,617 samples in

the 12 months prior to suit, and found only 11 exceedences

(some of which may not have been permit violations but ex-

cused upsets). Those 11 exceedences resulted from 7 separate

and unrelated causes and not from any chronic problem.

8

conduct will continue and a citizen’s suit may go forward.’’

However, if the causes of the exceedence have been rem-

edied, or the discharge was an isolated or infrequent event,

or the problem was caused by equipment failure which

was repaired, unusual weather or other similar unexpect-

ed causes, then it is not reasonable to believe that these

‘‘violations’’ will continue and a citizen suit is subject

to dismissal. In the cases below, the facts, as found by

the district courts and the Court of Appeals, simply do

not support a cause of action under 33 U.S.C. ¢ 1365.

If the facts are sufficient to authorize a court to is-

sue an injunction against the chronic episodic or continu-

ing violator at the time suit is filed (though an injunction

may not be ultimately granted because the problem was

corrected after suit was filed, or for equitable reasons, or

otherwise), then civil penalties are available as an addi-

tional sanction for those violations, including those occur-

ring prior to suit, which make up the continuing or re-

newed violations for which injunctive relief is available.

That is the reasoning of the Hamker court, the Pawtusxet

Cove court and the Shell Oil court.

The Sierra Club and the Gwaltney court have taken the

extreme position—that citizen suits may be instituted and

maintained for solely past violations. If solely past viola-

tions are sufficient to provide a citizen with a cause of ac-

tion under 33 U.S.C. § 1365, then each exceedence of any

permit limitation would form the basis for a suit no matter

what the cause of the violation or whether it has been

corrected, and no matter what the record of the discharger.

Under this reasoning there could be a separate suit by dif-

ferent plaintiffs for each past violation. The result could

be a massive burden on the federal courts and little, if any,

improvement to the environment. Such a position is clearly

unreasonable and unsupported by the statutory language.

9

The decision in Shell Oil below is consistent with the

decision in Pawtuxet Cove and both are proper interpre-

tations of the statutory language. The decision by the

court in Gwaltney is simply wrong and inconsistent with

the statutory language. Therefore, certiorari should be

denied in the instant case and Gwaltney should be reversed.

II. The Words ‘‘To Be In Violation’’ In 33 U.S.C.

§ 365(a) Do Not Refer To Past Violations That

Cease Prior To The Commencement Of The Law-

suit

A. Effluent Limitations Are Established on a

Parameter by Parameter and Outfall by Out-

fall Basis

Effluent limitations, which are developed for an in-

dustrial category or subcategory, are transformed into

limitations for an individual plant within the category

or subeategory by incorporation into the terms and condi-

tions of an NPDES permit issued to the discharger. 33

U.S.C. § 1342; Environmental Protection Agency v. Nat- '

tonal Crushed Stone Association, 449 U.S. 64, 70 (1980)

(queting Environmental Protection Agency v. California

ex rel. State Water Resources Control Board, 426 U.S. 200,

205 (1976)). If a discharger is in compliance with the ef-

fluent limitations contained in its NPDES permit it is

deemed to be in compliance with the CWA. 33 U.S.C.

§ 1342(k).

A single industrial facility may have numerous point

sources of discharge. These ‘‘outfalls’’ may serve a single

process unit or multiple units, single or multiple treatment

facilities, or may only carry stormwater runoff. See

Shell Oil, 817 F.2d at 1173. Due to the unique process and

treatment arrangement at each plant, when incorporating

effluent limitations into permits, EPA develops separate

conditions for each pollutant at each outfall. This is neces-

sarily so if effluent limitations are to be technology-based.

10

Also, because the treatment system for an outfall may be

unrelated to the treatment system for any other outfall,

an exceedence of a permit parameter (effluent limitation)

at one outfall is not an exceedence of any parameter at

another outfall even if the same pollutant is involved.

Stated simply, when determining whether a permittee has

violated an effluent limitation, one must look at each para-

meter at each outfall independently.?

B. ‘‘In Violation’? Means an Ongoing Violation of

an Effluent Limitation for a Particular Para-

meter at a Particular Outfall

Under Shell Oil, the role of the district court in de-

termining whether the defendants are ‘‘in violation’’ is

simple. The court first looks at the violations alleged in

the 60-day notice letter [33 U.S.C. ¢ 1865(b) (1) (A)] and

the complaint. It then compares the violations alleged with

the discharge monitoring reports (‘‘DMRs’’)® and other

written communications between the administrative agen-

cies and the discharger’, the documents in the agency

SThis is supported by the very notices given by the Sierra Club

in these cases. Each alleged violation is listed on an outfall by

outfall and parameter by parameter basis.

640 C.F.R. § 122.41(1)(4)(i).

7There are several other types of reports used by EPA to assist

in this determination. For example, 40 C.F.R. § 122.41(i)(6) re-

quires the permittee to oraliy report certain instances of non-

compliance within 24 hours. The oral report must be followed

by a written report which indicates the cause of the noncom-

pliance, whether the noncompliance has been corrected and

must include a description of measures planned to prevent a

recurrence.

Other instances of noncompliance not falling with these

categories must be reported on Noncompliance Reports (NCRs)

at the same time the DMRs are submitted. The NCRs must also

contain a description of the cause of the noncompliance, and

whether it has been corrected, and measures planned to prevent

a recurrence. 40 C.F.R. § 122.41(I)(7).

«.

11

enforcement files, and the other relevant evidence, includ-

ing the discharger’s explanations of the violations and the

actions taken to correct them. Once it has reviewed this

information, the court then determines whether any of the

violations listed in the notice letter and complaint are part

of a pattern of violations of a particular parameter at a

particular outfall which exists around the time suit was

filed.

If there is such a pattern, and the discharger is unable

to show that there has been a bona fide correction of the

cause of those violations or the problem was otherwise rem-

edied prior to suit being filed, then there is sufficient basis

for the issuance of an order enforcing that particular per-

mit limitation and for the award of appropriate civil pen-

alties for those violations of that particular permit limita-

tion which make up the pattern of violation. If there is

not a bona fide correction of the discharge problem, then

the discharger is not in compliance because it has not in-

stalled, properly operated and maintained the necessary

control equipment to comply with the discharge parameters

of its permit. If, however, there is no pattern of violations

or the pattern is broken prior to suit being filed as a re-

sult of either a bona fide correction of the discharge prob-

lem, or the issuance of a new permit or other reason which

indicates it is unlikely that there will be a recurrence of

the previous pattern of violations, then there is no basis

for a finding that the discharger is ‘‘in violation’’ and the

judgment should issue for the discharger.

Sierra Club would argue that a variety of unrelated

exceedences, involving different outfalls and different para-

12

meters and resulting from unrelated causes is sufficient

to establish liability under 33 U.S.C. § 1365. This position

ignores the fact that citizen suits are intended to ad-

dress specific, not generalized violations. Friends of the

Earth v. Consolidated Rail Corporation, 768 F.2d 57, 63

(2d Cir. 1985).

The argument that a permit is the equivalent of an

effluent limitation merely begs the question of what is

meant by ‘‘in violation.’’ A permittee is ‘‘in violation’’

of its permit only if it is ‘‘in violation’’ of a condition in

that permit. The ultimate determination of whether the

permittee is ‘‘in violation’’ still depends upon whether

there are unremedied problems such that future exceedences

are likely. If isolated and unrelated exceedences make a

permittee a ‘‘chronic episodic’’ or continuing violator,

then practically all dischargers will be subject to citizen

suits and the Congressional purpose that citizen suits

serve as a tool to bring about abatement of ongoing vio-

lation would be lost.

The Sierra Club also misconstrues the careful con-

sideration to the nature of the violations given by the

Court of Appeals below as being ‘‘excuses’’ for those past

violations. Petition at 22. The Court of Appeals in no

way ‘‘excused’’ any past violations. Rather, it carefully

evaluated those past violations to determine whether they

could reasonably be construed to suggest an ongoing prob-

lem—that is, the Court sought to determine if the dis-

9

charger was still ‘‘in violation’’ when the suit was filed.*

8Therefore, the claimed conflict with Weyehaeuser v. Costle,

590 F.2d 1011 (D.C. Cir. 1978) does not exist.

—-—

13

For example, the Court of Appeals noted that if permit

limitations in existence when suit was filed were applied

to past discharges then the number of violations of the

no longer effective limitations? cited by Sierra Club would

have been greatly reduced. ‘‘ While the new permit had no

retroactive effect,’’ Shell Oil, 817 F.2d at 1174, n.5, App.

at il-12, n.5, the greatly reduced numbers of violations

that would have oceurred in the past had the new limita-

tions been in effect demonstrates that those past violations

did not suggest an ongoing problem. That is, the past

violations, when considered in light of current permit lim-

itations, did not support the Sierra Club’s assertions that

the discharger was ‘‘in violation.’’

The alternative interpretation of ‘‘in violation’?

pressed by the Sierra Club and relied upon by the Court of

Appeals in Gwaliney—that citizen suits can be for solely

past violations—ignores the plain language of the statute."

Straining to find ambiguity where there is none, Gwaltney

relies on a false ana.ogy to the tax laws to conelude that

it is plausible to say that one is ‘‘in violation’’ and con-

tinues ‘‘in violation’’ by having once ‘‘violated.’’ Gwalt-

ney, 791 F.2d at 309, n. 10. As demonstrated by the court

in Pawtuxet Cove, this argument analogy is ‘‘forced and

the analogy inapt.’’ 807 F.2d at 1092.

°The permit conditions referred to were changed by EPA be-

cause they were recognized as being unrealistic and overly

stringent. Shell Oil, 817 F.2d at 1174, n.5, App. at 12, n.5. It

should be recognized that EPA has very limited authority to

liberalize an effluent limitation. See 40 C.F.R. § 122.44(l).

Had Congress intended 33 U.S.C. § 1365(a)(1) to apply to per-

sons beyond those who are presently “in violation,” it would

have easily been made to read “who is alleged to be, or to have

been, in violation.”” See Pawtuxet Cove, 807 F.2d at 1092.

14

The interpretation set forth in the Hamker, Sierra

Club and Pawtuxzet Cove opinions is the only interpreta-

tion that is consistent with the language, legislative history,

and structure of the Clean Water Act. Moreover, as shown

below, this interpretation avoids serious constitutional

problems involving the citizen suit provision that would

arise if citizens were authorized to sue to collect civil pen-

alties for violations that ceased prior to commencement of

the lawsuit.

C. The CWA Legislative History Supports the De-

cision Below.

Courts assume that the legislative intent is expressed

in the ordinary meaning of the words used in the statute."

United States v. Locke, 471 U.S. 84, 95 (1985); United

States v. Rodgers, 466 U.S. 475, 479 (1984); Richards v.

United States, 369 U.S. 1, 9 (1962). Hence, courts should

refuse to consider the applicable legislative history when

the statute is ‘‘plain and unambiguous on its face.’’ Ten-

nessee Valley Authority v. Hill, 437 U.S. 153, 187, n.33

(1978); Rubin v. United States, 449 U.S. 424, 430 (1981) ;

United States v. Oregon, 366 U.S. 643, 648 (1961); FAIC

Securities, Inc. v. United States, 768 F.2d 352, 361-362

(D.C. Cir. 1985).

There can be no doubt that some courts have strayed

from this rule of construction, but doing so entails the risk

illn fact, Senator Muskie, on whose statements the court in

Gwaltney relied in nice ay | the legislative history, stated that

the Conference Committee had “tried . . . not to leave the

final evaluation of the bill to legislative history, but instead to

write into law as clearly as possible the intent of the Congress.”

A Legislative History of the Water Pollution Control Act Amend-

ments of 1972 (1973) p. 164 (hereinafter CWA Legis. Hist.).

15

that the lawmaking process will be compromised. This

Court has recognized that reference to legislative history

where the statute is clear ‘‘would open the door to the in-

advertent, or perhaps even planned, undermining of the

language actually voted on by Congress and signed into

law by the President.’’ Regan v. Wald, 468 U.S. 222 (1984).

See also Eagle-Picher Industries v. EPA, 759 F.2d 922,

929 n.11 (D.C. Cir. 1985). Dissatisfied legislators or in-

terest groups can place in the legislative history state.

ments which can later be used to influence the courts to

interpret language to iheir favor, but contrary to the in-

tent of Congress as a whole. See National Small Shipments

v. Cw Aeronautics Board, 618 F.2d 819, 828 (D.C. Cir.

1980).

Even though the plain language of the statute appears

to settle the question of what Congress meant by ‘‘in vio-

lation,’’ if the Court desires to look to the legislative his-

tory, it should do so only to determine ‘‘whether there is

‘clearly expressed legislative intention’ contrary to the

language, which would require us to question the strong

assumption that Congress expresses its intent through the

language it chooses.’’ I.N.S. v. Cardoza Fonseca, — U.S.

—, 107 S.Ct. 1207, 1213, n.12 (1987). See Burlington

Northern Railroad Co. v. Oklahoma Tax Commission, —

U.S. —, 107 S.Ct. 1855, 1859-60 (1987). This is a step to be

taken cautiously. U.S. v. Locke, supra, 471 U.S. at 96

quoting American Tobacco Co. v. Patterson, 456 U.S. 63,

75 (1982).

Where the statutory language is clear, the party wish-

ing to alter the clear meaning by using legislative history

bears a great burden. ‘‘(T)he plainer the statutory lan-

16

guage, the more explicit, convincing and reliable the con-

trary legislative history must be to persuade a court to

follow the indications in the legislative history.’’ Monter-

ey Coal v. Federal Mine Safeiy & Health Review, 743

F.2d 589, 595 (7th Cir. 1984). See also Garcia v. United

States, 105 S.Ct. 479, 482-83 (1984); Consumer Product

Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102,

108 (1980); Friends of the Earth v. Consolidated Rail

Corp., 768 F.2d 57, 63 (2d Cir. 1985). As will be shown

below, the legislative history of 4 1365(a)(1) not only fails

to rebut the clear language of the statute, but convincingly

supports the literal interpretation of the statute.

The legislative history of the CWA makes it clear that

Congress’ intent was to limit citizen suits to actions seek-

ing to ‘‘abate’’ an ongoing violation. Committee reports

from both the House and the Senate, as well as excerpts

from the Senate debate on the bill, expressly refer to the

citizen suit provision as providing a cause of action to

abate violations, with injunctions and civil penalties avail-

able as remedies to achieve the abatement.”

& The Senate Committee Report, in reviewing Section 505,

refers to abatement as the goal of the citizen suit, and does not

mention past violations as a basis for suit. In the discussion of

the intent of Section 505(a)(1), the Report mentions “abate-

ment” numerous times: “if the agency had not initiated abate-

ment proceedings . . . the citizen might choose to file the ac-

tion.” (CWA Legis. Hist. p. 1498). “Whether abatement is sought

by an agency or by a citizen. . .” (/d. at 1498). “None of

these points (concerning class actions) is appropriate in citi-

zens suits seeking abatement of violations. . .” (/d. at 1499).

“This should extend (award of costs and fees) to plaintiffs in

actions which result in successful abatement but do not reach

a verdict.” (Id. at 1499).

(Continued on following page)

17

Further indications of Congress’ intent in Section 505

of the CWA can be found in the legislative history of the

Clean Air Act (CAA), 42 U.S.C. § 7401 et seq. The citizen

suit provision of the CAA served as the guide for the

citizen suit language of the CWA. Middlesex County

Sewerage Authority v. National Sea Clammers, 453 U.S.

1, 17 n.27 (1981); Natural Resources Defense Council v.

Trai, 510 F.2d 692, 699 (D.C. Cir. 1974); CWA Legis.

Hist. at pp. 820 and 1497. The CWA added the additional

remedy of civil penalties, but did not change the ‘‘alleged

to be in violation’’ language of the CAA citizen suit pro-

vision. As does the history of the CWA, the CAA’s legis-

lative history emphasizes that the purpose of the citizen

suit provision is to abaie violations and not to permit

actions against violations that are not ongoing.”

(Continued on following page)

The Conference Committee adopted the Senate provision,

except to recommend two changes to Section 505 unrelated to

“in violation”. The lack of attention to this issue is indicative

that Congressional intent is properly represented by the clear

language of the statute. Monterey Coal, supra, 743 F.2d at 598.

3(j) The Clean Air Act Conference Committee Report states:

“The conference agreement authorizes citizen suits against pol-

luters to abate violations. . . This should extend to plaintiffs in

actions which result in successful abatement. . .” A Legislative

History of the Clean Air Amendments of 1970 (1974) p. 136

(hereinafter CAA Legis. Hist.).

(ii) The Statement of the Managers on the Part of the House

(on the Conference results) states: ‘The House bill did not in-

clude a provision for citizen suits. The Senate amendment au-

thorized citizen suits against violators . . . to seek abatement

of such violations.” (CAA Legis. Hist. p. 205).

(iii) The Senate Report discussion of intent uses the identical

language found in the Clean Water Act Senate Report, clearly

referring to the citizen suit provision as on seeking abatement of

violations. Compare the CWA Legis. Hist. at p. 497, with CAA

Legis. Hist. at p. 437.

18

In its attempt to alter the clear language of the statute,

the Gwaltney court cites principally two of Senator Mus-

kie’s comments upon presentation of the Conference

Committee Report to the Senate. These excerpts fall far

short of the required ‘‘explicit, convincing and reliable’’

type of legislative history needed to alter clear, unambig-

uous statutory language.

Even though Muskie is considered as ‘‘perhaps the

Act’s primary author,’’ 1.1. duPont de Nemours & Co. v.

Train, 430 U.S. 112, 129 (1977), bis statements do not rep-

resent any formal report concurred in by other members

of Congress, but are only his personal comments. The

statements of a single legislator, even the sponsor of a pro-

vision, are not controlling in analyzing the legislative his-

tory.4 Consumer Products Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102, 118 (1980); Chrysler Corp.

v. Brown, 441 U.S. 281, 311 (1979); Dubois v. Thomas, 820

F.2d 943, 947 (8th Cir. 1987). cf. United States Depart-

ment of State v. Washington Post Co., 456 U.S. 595, 600-

601 (1982). (‘‘Passing references and isolated phrases are

not controlling when analyzing a legislative history ....

[T]here surely would be clear suggestions in the legislative

4Bo0th the Fifth and Eighth circuits in other cases have found

Senator Muskie’s statements interpreting the CWA to be con-

trary to the intent of Congress. In the first sentence of the same

paragraph of his oral statement in which he says that citizens

can file suit against one alleged “to have been” in violation,

Senator Muskie stated that the Administrator had a non-discre-

tionary duty to issue an abatement order whenever an NPDES

permit violation occurred. (CWA Legis. Hist. at p. 163). The

Fifth and Eighth Circuits have since ruled that the intent of Con-

gress was that the issuance of such orders be discretionary. Sierra

Club v. Train, 557 F.2d 485 (5th Cir. 1977); Dubois v. Thomas,

820 F.2d 943 (8th Cir. 1987).

19

history’’ if a meaning other than the normal meaning of

the word were intended).

Additionally, the circumstances of the delivery of

Muskie’s statements weaken their weight. His only state-

ment regarding solely past violations was never actually

spoken to the Senate but is found in a written statement

entered into the record as an addendum to his spoken com-

ments.'* His oral remarks were substantially less favorable

for the Sierra Club position as they indicated that a citizen

suit may be based upon only ‘‘continuous and intermittent”’

violations.'© The House, which voted on the final bill the

same day that Muskie made his statement to the Senate,

did not have the opportunity to hear the remarks or read

the statement entered into the Congressional record. As

such, his statement is of limited weight. See, e.g., Nationai

Association of Greeting Card Publishers v. United States

Postal Service, 462 U.S. 810, 832 n.28 (1983).

The Sierra Club also argues that recent legislative

statements and amendments to the CWA support its posi-

tion. Such statements and legislative history are of ques-

tionable worth. ‘‘What happened after a statute was en-

acted may be history and it may come from members of the

Congress, but it is not part of the legislative history of the

original enactment.’’ Rogers v. Frito-Lay, Inc., 611 F.2d

1074, 1080 (5th Cir. 1980) ; see American Mining Congress

v. EPA, slip op., Dkt. No. 85-1206 (D.C. Cir. July 31, 1987),

15See CWA Legis. Hist. pp. 163-164, 179.

16CWA Legis. Hist. p. 163. ‘Intermittent’ indicates a substantial

degree of regularity and continuity in the specific violations.

20

Lexis at 19; ‘‘Subsequent legislative history will rarely

override a reasonable interpretation of a statute that can

be gleaned from its language and legislative history prior

to its enactment.’? Consumer Product Safety Commission

v. GTE Sylvania, Inc., supra, 447 U.S. at 118 n.13. There-

fore, the recent amendments to the CWA are entitied to

little, if any, weight in evaluating Congress’ intent in pass-

ing the prior legislation.

Moreover, the legislative history of the Water Quality

Act of 1987 relied on by the Sierra Club does not support

its strained interpretation of ‘‘in violation.’’ It is clear

that Congress believes that the government can seek re-

lief for purely past violations of a permit condition, but as

shown below, a citizen’s authority to seek relief under the

citizen suit provision is not coextensive with the govern-

ment’s authority to enforce civil penalties.

The Sierra Club and the Gwaltney court have failed

to show that the legislative intent differs from the clear

statutory language. Gwaltney should be reversed and

certiorari denied in this case.

D. A Citizen’s Authority to Enforce the Clean Water

Act Is Not Coextensive with that of the Govern-

ment.

The Sierra Club and the Gwaltney court argue that

citizen enforcement authority under the CWA is coexten-

sive with that of the government. Their reasoning is that

the government is empowered to enforce the CWA, includ-

ing the civil penalty provision (§1319(d)), by § 1319(b),

which in turn incorporates the standard of § 1319(a), which

authorizes the government to institute an enforcement ac-

tion against anyone ‘‘in violation of any condition or limita-

- ent ete chown.

|

21

tion ...’? See Petition at 16, see also Gwaltney, 791 F.2d

at 309.

The Sierra Club’s and Gwaltney’s reliance on Section

1319(d) is totally misplaced. As pointed out by this court

in Tull v. United States, — U.S. —, 107 S.Ct. 1831, 1839

(1987) :

Section 1319 does not intertwine equitable relief with

the imposition of civil penalties. Instead, each kind

of relief is separably authorized in a separate and dis-

tinct statutory provision. Subsection (b), providing

injunctive relief, is independent of subsection (dq),

which provides only for civil penalties.

That is, the language of subsections 1319(a) and 1319(b)

refers only to injunctive relief and administrative compli-

ance orders, and that language does not provide the juris-

dictional basis for governmental enforcement of civil penal-

ties. On this issue, even the government, which supports

affirmance of Gwaltney for factual reasons, agrees with

our position and points out in its Amicus brief in Gwallt-

ney at 20-21 that jurisdiction for the government to en-

force the civil penalty provision, Section 1319(d), is pro-

vided by 28 U.S.C. 1345 and 1355.

By contrast, the citizen suit provision is the sole

authority for a citizen to seek an injunction or civil

penalties. As compellingly stated by the Government,

‘*[t]he marked divergence between the language of Sec-

tion 309 [Section 1319] and that of Section 505 [Section

1365] persuasively demonstrates that Congress gave the

government—but not private citizens—the power to seek

civil penalties for wholly past violations.’’ Brief for the

United States at 21, n.33.

22

That citizen enforcement is not coextensive with gov-

ernment enforcement authority is also shown by the re-

quirements of $1365 that the plaintiff be adversely af-

fected, that the plaintiff has given the required sixty day

prior notice of the alleged violation, and that the citizen

be precluded from commencing suit if EPA or the State

already commenced a suit to require compliance.”

The Sierra Club is concerned that preventing citizen

groups from suing for penalties for solely past violations

will impair the uniformity of the enforcement scheme that

Congress sought to create under the CWA. Just the oppo-

site is the case. Congress intended for EPA to be the pri-

mary enforcer of the CWA because EPA has substantial

expertise in judging compliance with water pollution con-

trol effluent limitations. This expertise allows EPA to

recognize that the mere existence of occasional exceedences

of a permit limitation does not necessarily represent a

pattern of violations.

All of the NPDES permits involved in the six cases

in this matter were written to achieve the level of pollu-

tion control achievable through application of best practi-

cable control technology currently available (‘‘BPT’’).

The method utilized by EPA for establishing these BPT

permit effluent limitations was to look at the performance

of the best performing pollution control technology. As

described by the court in Marathon Oi v. Environmental

Protection Agency, 564 F.2d 1253, 1266 (9th Cir. 1977):

Thus, the citizen suit provision was not intended to displace

the role of government enforcement, but rather to ensure that

people being adversely affected by violations of a permit could

obtain relief through the courts if the discharger failed to rem-

edy the violations or if the government failed to take enforce-

ment action.

23

In computing a standard based on a ‘‘confidence in-

terval’’ of, say, 99%, the EPA determines a me/1

standard that the effluent discharee data from an ex-

emplary plant can be expected to fall inside of 99%

of the time.

Typical ‘‘confidence intervals’? were 99% for daily maxi-

mum effluent limitations and 95-97% for daily or monthly

average effluent limitations.'®

As recognized in American Petroleum Institute v.

Environmental Protection Agency, 661 F.2d 340, 350 (5th

Cir. 1981), BPT presumes occasional exceedences :

The record proves that upsets and bypasses are as

much a part of BPT as modern equipment and tech-

nological data. Despite best efforts at compliance,

even a facility employing the best available equipment

will oceasionally exceed discharge limitations.

See also FMC Corporation v. Train, 539 F.2d 973, 986

(4th Cir. 1976).

Thus, EPA would expect even the best available sys-

tem to be in violation of the standards some percentage of

the time. Therefore, a plant that occasionally fails to meet

a given standard is performing as well as EPA expects

under BPT technology. Thus, while permits on their face

require 100% compliance, the courts have held that 100%

compliance cannot be achieved and is not expected.

'8These confidence intervals are for each pollutant being limited,

thus are applicable to each parameter at each outfall and not

for the overall performance for every parameter at all outfalls.

Contrary to the representations of Petitioners’ counsel, the

Shell Oil decision did not approve a 95°/o compliance standard

for NPDES permits. The Fifth Circuit simply emphasized that a

review of the companies’ compliance records only demonstrat-

ed the presence of “occasional” exceedences and not continu-

ing violations. Shell Oil, 817 F.2d at 1173-1174, App. pp. 11-12.

Sierra Club’s “arsenic violation” analogy (Petition at p. 24, n.17)

is thus completely misleading and erroneous.

iit acaiaiiaiaiieiaiiaieaaiaaiiintiiaaiiaan

24

KPA can use its expertise and discretion in deciding

whether or not to prosecute a company which might exceed

a permit limitation, keeping in mind that oceasional ex-

ceedences of permit limitations in the past do not neces-

sarily constitute an ongoing violation, but rather reflect

the method the EPA employed in determining effluent

limitations and the limitations of control technology and

measurement techniques. Citizen groups on the other hand,

do not bring this same expertise to focus in determining

whether a violation has occurred. The statutory language

limiting citizen suits to cases in which the defendant is

alleged ‘‘to be in violation’’ of an effluent limitation,

therefore, plays a role similar to EPA’s prosecutorial

discretion.

E. The First and Fifth Circuits’ Interpretation of

the Words ‘‘In Violation’? Is Required to Avoid

Serious Constitutional Questions.

The First and Fifth Cireuits’ interpretation of the

words “‘in violation’’ is required to avoid serious questions

about the constitutionality of the Citizen Suit provision.

The Sierra Club and Gwaltney interpretation that these

words permit a suit for civil penalties payable to the United

States Treasury for violations that have ceased prior te

the filing of a complaint would render the citizen suit pro-

vision of dubious constitutionality under the standing re-

quirements of Article IIT.

The question of whether a plaintiff has standing in-

volves both constitutional and prudential limitations. While

Congress may, by legislation, expand standing to the full

extent permitted by Article ITI," ‘‘(i)n no event, however,

19For purposes of discussion, we will assume that Congress in-

tended to expand standing to the full extent permitted by the

Constitution.

25

may Congress abrogate the Art. III minima...’’ Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979).

The Article IIT constitutional limitations on standing in-

volve three separate but related components: 1) There

must be a ‘‘distinct and palpable’’ injury to the plaintiff,

Warth v. Seldin, 422 U.S. 490, 501 (1975), rather than an

alleged injury which is ‘‘abstract,’’ ‘‘conjectural,’’ or ‘‘hy-

pothetical,’’ Los Angeles v. Lyons, 461 U.S. 95, 101-102

(1983). 2) The injury “must be ‘fairly’ traceable to the

challenged action.’’ Allen v. Wright, 468 U.S. 737, 751

(1984). 3) There must be a ‘‘substantial likelihood’’ that

the relief requested will redress or prevent the injury.

Simon v. Eastern Kentucky Welfare Rights Organization,

426 U.S. 26, 38 (1976); Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc.,

454 U.S. 464, 472 (1982).

Here, we will focus on the redressability requirement.

The question is whether any relief allowed under tlie citi-

zen suit provision can redress or prevent injury to the

Sierra Club or its members fairly traceable to the chal-

lenged action of a discharger who has ceased being ‘‘in

violation’’ by the time suit is filed.

It is clear that the citizen suit provision can provide

two types of remedy—injunctive relief ‘‘to enforce such an

effluent standard or limitatiori’’ and civil penalties payable

26

to the U.S. Treasury. Middlesex County Sewerage Auth-

ority v. National Sea Clammers Association, 453 U.S. 1, 14

n.25 (1981). Neither of these types of relief can possibly

redress or prevent any injury caused by violations of efflu-

ent standards or limitations which have already ceased

when suit is brought.”

The plaintiffs could be made whole for any injury

caused by violations in the past by damages payable to

them; but damages are not available under the citizen suit

provision. If the discharger is in violation when suit is

filed, the plaintiff would have standing to seek an injunc-

tion and civil penalties payable to the Treasury because of

the concrete threat of resumed violations. But the Sierra

Club and the Gwaltney court would allow actions to be

brought even where the violations have been remedied.

201f the violations were ongoing, injunctive relief obviously

would provide relief and would easily meet the redressability

requirement. We also believe that civil penalties payabie only

to the U.S. Treasury for ongoing violations would meet the re-

dressability requirement—even when the magnitude of those

penalties is determined, in part, by the number of violations in

the past. That the violations are ongoing would give the plain-

tiffs a personal stake in the outcome of the litigation, and the

existence of a personal stake is the essence of the standing re-

quirement. See Baker v. Carr, 369 U.S. 186, 204 (1962). Thus,

civil penalties are available for past violations when—and only

when—those past violations are part of the ongoing violations

of the particular effluent limitation.

PAPA reevine ns aes .

CONCLUSION

For the reasons set out above, this Court should deny

the writ requested.

Frank S. Craig, III*

Respectfully submitted,

Tom F. Phillips*

BREAZEALE, SACHSE & WILSON TAYLOR, PORTER, BROOKS

Post Office Box 3197

Baton Rouge, LA 70821-3197

(504) 387-4000

Counsel for Allied Corporation,

Bercen, Inc. and Formosa

Plastics Corporation,

Louisiana, Inc.

Robert S. Taylor*

SWIDLER & BERLIN, Chartered

3000 K St. NW, Suite 300

Washington, DC 20007

(202) 944-4320

Counsel for Allied Corporation

* Counsel of Record

& PHILLIPS

Post Office Box 2471

Baton Rouge, LA 70821

(504) 387-3221

Counsel for Monochem, Inc.

Burt Ballanfant*

Jose A. Berlanga

Post Office Box 2463

Houston, TX 77001

(713) 241-2233

Counsel for Shell Oil Company

William R. D’Armond *

KEAN, MILLER, HAWTHORNE,

D’ARMOND, McCOWAN &

JARMAN

Post Office Box 3513

Baton Rouge, LA 70821

(504) 387-0999

Counsel for Copolymer Rubber

& Chemical Corporation