Petition for Writ of Certiorari — Arkansas Wildlife Federation v. ICI Americas, Inc.

Sopremé Court, U.S.

FILED

) 94 R44 voy - 4 005

No. 94-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

Arkansas Wildlife Federation,

Petitioner,

Ve

ICI Americas, Inc.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

James M. Hecker Samuel E. Ledbetter

(Counsel of Record) Nichols, Wolff, Ledbetter

Trial Lawyers for Public & Campbell

Justice, P.C. 200 W. Capitol St., Suite 1650

1717 Massachusetts Ave., N.W. Little Rock, AR 72201

Suite 800 (501) 372-5659

Washington, D.C. 20036

(202) 797-8600

Attorneys for Petitioner

in iin

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QUESTIONS PRESENTED

1. Whether Arkansas’ administrative penalty order bars

plaintiff's claims for injunctive and declaratory relief in a citizen

suit under the Federal Water Pollution Control Act, even though

the plain language of that Act provides that such an order only

precludes a “civil penalty action.”

2. Whether Arkansas’ administrative penalty order bars

plaintiff's claims for civil penalties in a citizen suit under that Act,

even though the plain language of the statute provides that such an

order has no preclusive effect where, as here, a state’s procedures

for public participation and penalty assessment are not

“comparable” to mandatory federal procedures prescribed by

Congress for imposing administrative penalties under that Act.

TABLE OF CONTENTS

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EE er 1

a l

8 ot ea 3

REASONS FOR GRANTING THE WRIT ............-- 8

I. The Eighth Circuit's Decision Is In Direct Conflict

with Supreme Court Precedent. .............-.-. 8

Il. The Court of Appeals’ Decision Exacerbates the

Existing Split of Authority in the Courts.. ....... 12

EE a ee ee ee 18

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EE ES a ee ee 16a

EE I ee ee 17a

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ES Oa ee ee ee ee ee 43a

EEE ee ee ee 46a

TABLE OF AUTHORITIES

Cases: Page

Antrim Mining, Inc. v. Davis, 775 F. Supp. 165

ss a a) are aad se aca 16

Arkansas Wildlife Federation v. Bekaert Corp., 791

i Se eer 14

Arkansas Wildlife Federation v. ICI Americas, Inc.,

842 F. Supp. 1140 (E.D. Ark. 1993), affd, 29

eB ee ee eee passim

Atlantic States Legal Foundation, Inc. v. Universal

Tool Stamping Co., Inc., 735 F. Supp. 1404

I slg a a sy a eo oo elk 13

Atlantic States Legal Foundation v. Tyson Foods,

682 F. Supp. 1186 (D. Ala. 1988) .............. 14, 16

Chevron U.S.A, Inc. v. NRDC, 467 U.S. 837 (1984) ....... 8

Citizens for a Better Environment-California v.

Union Oil Co. of California, No. C94-0712 TEH

ooh ee RR en eee 14

Coalition for a Liveable West Side, Inc. v. NYC

Dept. of Environmental Protection, 830 F. Supp.

ok 8 a RO Ge, ree 14, 17

Commissioner of Internal Revenue v. Asphalt

Products Co., Inc., 482 U.S. 117 (1987) .............. 9

Connecticut Coastal Fisherman's Association v.

Remington Arms Co., Inc., 777 F. Supp. 173 (D.

Conn. 1991), affd on other grounds, 989 F.2d

Se ey is oa aE oe Ses 14, 16

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, 484 U.S. 49 (1987) ................. 14-18

NRDC v. Fina Oil Chemical Co., 806 F. Supp. 145

eee ee NE Ss ea ose ee oe ee 14

NRDC v. Vygen Corp., 803 F. Supp. 97 (N.D. Ohio

CN - 64 a Naas eek en Fee ee eee ee 13

iii |

New York Coastal Fishermen's Association v. New

York City Department of Sanitation, 772 F. Supp.

162 (S.D.N.Y. 1991) .....-- eee cece cece reese 14, 16

North and South Rivers Watershed Ass'n v. Town of

Scituate, 949 F.2d 552 (ist Cir. 1991) .......-.. 12-15, 17

Orange Environment, Inc. v. County of Orange, No. 91-8688

(GLG), 1994 WL 459909 (S.D.N.Y. Aug. i MD acew ss 14

PIRG v. GAF Corp., 770 F. Supp. 943 (D.N.J. 1991) ..... 13

PIRG v. Hercules, Inc., 830 F. Supp. 1525 (D.N.J. 1993)... 18

PIRG v. New Jersey Expressway Authority, 822 F.

Supp. 174 (D.N.J. 1992) .....--- eee eee 13, 14

PIRG v. Witco Chemical Corp., 31 Env't Rep. Cases

(BNA) 1571 (D.N.J. 1990) ..... 0-2 ee eee eee 14

Pape v. Menominee Paper Co., No. 2:93-CV-236, 1994

U'S. Dist. LEXIS 10277 (W.D. Mich., May 6, 1994) .... 14

Pennsylvania Environmental Defense Foundation v.

Mount Pocono Municipal Authority, Civil No.

90-1208 (M.D. Pa., May 14, 1991)......----------> 13

Saboe v. State of Oregon, 819 F. Supp. 914 (D. Ore.

SR eC ere ee ee 2 eo ee 14, 16

Save our Bays and Beaches v. City and County of

Honolulu, Civ. No. 92-00263 (D. Hawaii, July 27, 1994) . 13

Sierra Club v. Colorado Refining Co., 838 F. Supp.

1428 (D. Colo. 1993) ..... 2-6 e cere c ces eeeees 14, 16

Sierra Club v. Colorado Refining Co., 852 F. Supp.

1476 (D. Colo. 1994) .......-- eee eee eee: 14, 16

Sierra Club v. Port Townsend Paper Corp., 28 Envt

Rep. Cases (BNA) 1676 (W.D. Wash. es 14

SPIRG v. P.D. Oil & Chemical Storage, Inc., Civ.

No. 84-340A (D.N.J., Oct. 28, 1988) .....-------+>- 14

Tennessee Environmental Council v. Dana Corp., Civ.

No. 1:92-0074 (M.D. Tenn. Jan. 4, 1994) ......------ 13

U.S. v. Atlas Powder, 26 Env't Rep. Cases (BNA) 1391

Ce SS ee rer, eee 16

Washington PIRG v. Pendleton Woolen Mills, 11 F.3d 883

(Oth Cir. 1993) .. 02... cece reece eee eeees 12-13, 17

iv

Statutes and Regulations:

Re, Cote Ame, © G60) nn cc ii ccc cece cece. 10

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Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq.

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Fer EE ng on os ceva sseceseadan l

BR eee eee 1-2, 7, 10

BBE a er 1-2, 7, 10

Be I oo a 0 RR 86 0s wee ew passim

SS UB Se REID gcc ee cece scans 9

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Se ee ED a's ik Sb ees awe caw eees 18

Be CS ok cs ok ve ea ee bk ee ee oes 3

Be Ce EE cs dc nn eects enuevaeweaeen 1

a EE isc cute veces neces eaeeh 16

ep Shs ED oven cavsseaestunusvan 16

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RN os oe edi Ge ee es 6

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Legislative Materials:

H. Rep. No. 1004, 99th Cong., 2d Sess. (1986) ........... 8

S. Rep. No. 50, 99th Cong., Ist Sess. (1985) ............ 18

OPINIONS BELOW

The opinion of the court of appeals (App., la-15a) is

reported at 29 F.3d 376 (8th Cir. 1994). The opinion of the district

court (App., 17a-37a) is reported at 842 F. Supp. 1140 (E.D. Ark.

1993).

JURISDICTION

The judgment of the court of appeals was entered on July

7, 1994 (App. 2a). The court of appeals denied a timely petition

for rehearing on August 12, 1994 (App. 16a). The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 505(a) of the Federal Water Pollution Control Act

(FWPCA), 33 U.S.C. § 1365(a), provides in pertinent part as

follows:

Except as provided in subsection (6) of this

section, and section 309(g)(6) any citizen may

commence a civil action on his own behalf--

(1) against any person *** who is alleged

to be in violation of (A) an effluent standard or

limitation under this Act ***.

The district courts shall have jurisdiction *** to

enforce such an effluent standard or limitation ***

and to apply appropriate civil penalties under

section 309(d) of this Act.

Sections 309(g)(1), (g)(3), (g)(4), amd (g)(6) of the

FWPCA, 33 U.S.C. §§ 1319(g)(1), (g)(3), (@)(4), and (g)(6),

provide in pertinent part as follows:

(1) VIOLATIONS.--Whenever on the basis of any

information available |

(A) the Administrator [of EPA] finds that

any person has violated *** any permit condition

*** in a permit issued under section 402 of this

Act *¥*k*

the Administrator *** may *** assess a class I

civil penalty or class II civil penalty under this

subsection.

(3) DETERMINING AMOUNT.--In determining

the amount of any penalty assessed under this

subsection, the Administrator *** shall take into

account the nature, circumstances, extent and

gravity of the violation, or violations, and, with

respect to the violator, ability to pay, any prior

history of such violations, the degree of

culpability, economic benefit or savings (if any)

resulting from the violation, and such other matters

as justice may require.

(4) RIGHTS OF INTERESTED PERSONS.--

(A) PUBLIC NOTICE.--Before issuing an

order assessing a civil penalty under this

subsection the Administrator *** shall provide

public notice of and reasonable opportunity to

comment on the proposed issuance of such order.

(6) EFFECT OF ORDER.--

(A) LIMITATION OF ACTIONS UNDER

OTHER SECTIONS.--Action taken by the

Administrator *** under this subsection shall not

affect or limit the Administrator's *** authority to

enforce any provision of this Act; except that any

violation--

(i) with respect to which the Administrator

*** has commenced and is diligently prosecuting

an action under this subsection,

(ii) with respect to which a State has

commenced and is diligently prosecuting an action

under a State law comparable to this subsection, or

(iii) for which the Administrator *** or the

State has issued a final order not subject to further

judicial review and the violator has paid a penalty

assessed under this subsection, or such comparable

State law, as the case may be,

shall not be the subject of a civil penalty action

under subsection (d) of this subsection or section

311(b) or section 505 of this Act.

STATEMENT OF THE CASE

The Arkansas Wildlife Federation (AWF)’ brought this

action against I.C.I. Americas, Inc. (ICI) under the citizen suit

provision of the FWPCA, 33 U.S.C. § 1365. AWF alleged that ICI

was violating its National Pollutant Discharge Elimination System

(NPDES) permit. The courts below held that AWF's suit was

precluded under section 309(g)(6) of the FWPCA because of

administrative enforcement action that the Arkansas Department of

Pollution Control & Ecology (PC&E) had taken against ICI. The

history of that action is recounted below.

PC&E issued an NPDES permit to ICI in September 1988.

ICI violated its permit in 35 of the 44 months from November

1988 through June 1992. In February 1991, PC&E sent ICI a letter

warning of possible enforcement action and requesting a meeting.

When PC&E and ICI met in March 1991, ICI presented a plan to

correct its violations by December 31, 1991. In April 1991, PC&E

and ICI entered into a “consent administrative order” (CAO) in

which ICI agreed to pay a $1,000 penalty and carry out its plan for

corrective action. The CAO by its terms only covered 30 permit

violations that had occurred between January 1990 and January

'AWF has no parent companies or subsidiaries.

3

1991, and took no action as to earlier permit violations?” PC&E

provided no public notice or opportunity to comment on the CAO

before it was issued.

On July 2, 1991, AWF sent ICI a 60-day notice letter

which stated that AWF intended to file a citizen suit under the

FWPCA. In addition to the 30 violations covered by the CAO,

AWF’s notice included 25 violations that occurred in 1988 and

1989 that were not covered by the CAO.

In response to AWF'’s notice letter, ICI asked PC&E to

issue a “corrected” CAO which would cover all of its past permit

violations. In September 1991, PC&E and ICI entered into a new

“corrected” CAO that covered all violations since November 1988.’

However, the amount of the penalty was not increased. Again,

PC&E provided no public notice or opportunity to comment on this

action. In October 1991, after the required 60-day notice period

had elapsed, AWF filed its complaint seeking penalties and

declaratory and injunctive relief.

ICI did not meet the deadline in its compliance plan and

continued to violate its permit. In December 1991, at ICI’s request,

PC&E granted ICI an extension of its compliance date to April 30,

1992, in exchange for an additional penalty of $500. ICI continued

to violate its permit. In April 1992, at ICI’s request, PC&E granted

a second extension, to December 1992, for another $500 penalty.

The 30 violations included repeated and significant violations of the

permit limits for chemical oxygen demand (11 violations, with the highest value

more than three times the permit limit); total suspended solids (five violations,

highest value six times the permit limit); and zinc (10 violations, highest value

almost three times the permit limit). Zinc is classified by EPA as a toxic

pollutant. 40 C-F.R. § 401.15.

*While ICI argued below that this “correction” merely carried out the

intent of the parties at the time the first CAO was issued in April 1991, the

“corrected” CAO listed violations that occurred in May and June 1991, after the

date of the first CAO.

sirens were

Again, ICI continued to violate its permit. Finally, in January

1993, at ICI’s request, PC&E agreed to a third amendment to the

CAO which imposed another $500 penalty, waived the requirement

for ICI to comply with the previously applicable discharge limits

for zinc in its permit, waived some monitoring and reporting

requirements, and waived penalties for any future zinc violations.

There was no public notice or opportunity for public comment on

any of these actions by PC&E.

In determining the penalty amounts in the original,

corrected, and amended CAOs, which totalled $2500, PC&E did

not request ICI to provide information on, and did not consider,

the economic benefit to ICI from its delayed permit compliance.

App. 41a-42a, 44a-45a. According to an unrebutted affidavit from

AWF’s economic expert, the economic benefit to ICI from its

delayed noncompliance was $181,023. This figure represents the

amount of money ICI was able to earn during its period of

noncompliance by delaying its expenditures on pollution control.

In determining the penalty amounts in the original,

corrected, and amended CAOs, PC&E also did not consider ICTI's

ability to pay a penalty. App. 44a. ICI's parent is one of the

world’s 50 largest corporations, with annual U.S. sales of $5 billion

and annual worldwide sales of $25 billion.

On these facts, ICI moved for summary judgment on the

ground that under section 309(g)(6) of the FWPCA, PC&E’s CAOs

barred AWF’s suit. That section precludes citizen suits for

violations “with respect to which a State has commenced and is

diligently prosecuting an action under a State law comparable to

[section 309(g)].” 33 U.S.C. § 1319(g)(6). AWF opposed ICT’s

motion and filed cross-motions for summary judgment and for

declaratory and injunctive relief.‘ In April 1993, the district court

‘In its motion for summary judgment, AWF identified 111 violations of

discharge limits and 17 violations of the monitoring and reporting requirements

in ICI's permit between November 1, 1988 and June 15, 1992. ICI violated its

5

granted ICI’s motion for summary judgment, dismissed AWF’s

cross-motions as moot, and dismissed AWF’s complaint The

district court held that AWF’s action was jurisdictionally barred

under section 309(g)(6). The district court further held that the

jurisdictional bar applied to all of ICI’s past permit violations and

covered claims for declaratory and injunctive relief, as well as civil

penalties, even though the statutory bar is expressly limited to

actions for “civil penalties.” App. 20a-36a. AWF appealed.

On appeal, the United States filed an amicus brief

supporting AWF’s position that its citizen suit was not barred under

section 309(g)(6). In its brief, the United States asserted a “direct

interest in the development of the law regarding citizen

enforcement of the Act.” The United States noted that “Congress

has charged the Administrator of the Environmental Protection

Agency (‘EPA’) with ultimate responsibility for enforcement of the

Act.”

The United States recognized that an erroneous

interpretation of section 309(g)(6) would limit its enforcement

authority. That section states that if the conditions for preclusion

are met as to a particular violation, that violation “shall not be the

subject of a civil penalty action under subsection (d) of this section

or section 311(b) or section 505 of this title” 33 US.C. §

1319(g)(6). This language therefore treats EPA enforcement

discharge limits for zinc 47 times, for chemical oxygen demand 39 times, for total

suspended solids 18 times, for oil and grease 4 times, for pH 2 times, and for

phenol 1 time. ICI also failed to sample its discharges with the frequency

required by its permit and failed to report all of its violations on its monitoring

reports. Under the Act, each of these violations is subject to a civil penalty of up

to $25,000 per day for each violation. 33 U.S.C. § 131%d). In its motion for

declaratory relief, AWF sought a declaratory judgment that the third amendment

to the CAO did not comply with required procedures for NPDES permit

modifications, including public notice and comment (40 C.F.R. §§ 122.62, 122.63,

and 124.10), and that ICI therefore had a continuing duty to monitor and report

its discharges. In its motion for injunctive relief, AWF sought an injunction

requiring ICI to comply with all terms and conditions of its permit.

6

Fil

actions under sections 309(d) and 311(b) and citizen enforcement

actions under section 505 the same way in terms of preclusion by

state administrative penalty orders. Consequently, overbroad

interpretations of that preclusion provision will unduly limit the

authority of both citizens and EPA to enforce the Act.

The United States argued in its amicus brief that PC&E's

penalty orders did not meet the conditions for preclusion in section

309(g)(6). It contended that those orders could not bar AWF's civil

penalty claims, because Arkansas procedures for assessing penalties

were not “comparable” to EPA’s procedures and because the orders

were not “diligently prosecuted.” U.S. Br. 6-15. EPA procedures,

as set forth in section 309(g)(4), require it to provide public notice

and opportunity for public comment on proposed penalty orders.

Arkansas did not provide any public notice or opportunity for

public comment before issuing any of its penalty orders against

ICI. EPA procedures, as set forth in section 309(g)(3), require it

to consider a number of factors in determining administrative

penalties, including economic benefit and ability to pay. Arkansas

did not consider either of these factors when it imposed penalties

on ICI.

The United States also argued that even if AWF's claims

for civil penalties were precluded, AWF’s claims for injunctive and

declaratory relief were not. U.S. Br. 15-17. It stated that this

conclusion was supported by the plain language of the statute and

its legislative history and that “there can be no serious question that

the district court's reading of it was in error.” Id. at 16.

The court of appeals nevertheless affirmed the district

court's decision. It held that AWF’s civil penalty claim was barred

on the ground that PC&E had commenced and was diligently

prosecuting an administrative penalty action against ICI pursuant

to a state statute comparable tc section 309(g)(6). App. 6a-12a.

The court of appeals also held that AWF could not pursue its

claims for injunctive and declaratory relief. App. 12a-14a.

Although it recognized that section 309(g)(6) merely appiies to

“civil penalty actions,” it disregarded this statutory language on the

ground thaf it would be “unreasonable” to bar civil penalty claims

without also barring the entire action. App. 13a-14a.

REASONS FOR GRANTING THE WRIT

I. The Eighth Circuit's Decision Is In Direct

Conflict with Supreme Court Precedent.

The decision below is in direct conflict with Supreme Court

precedents concerning the interpretation of federal statutes. Under

those precedents, “[i]f the intent of Congress is clear from the plain

meaning of the statutory provision, that will be the end of the

judicial inquiry.” Chevron U.S.A, Inc. v. NRDC, 467 U.S. 837, 843

(1984).

AWF sought declaratory and injunctive relief in its

complaint and by motion. Section 309(g)(6) simply does not bar

such relief under any circumstances. The plain language of that

section merely states that a violation which is the subject of

government enforcement “shall not be the subject of a civil penalty

action.” 33 U.S.C. § 1319(g)(6)(A)(emphasis added). It is

axiomatic that an action for declaratory and injunctive relief is not

a “civil penalty action.”°

*The Conference Report on the bill that added Section 309(g)(6) in 1987

confirms that Congress intended only to bar actions for civil penalties, not actions

for declaratory and injunctive relief:

This limitation applies only to an action for civil penalties for the same

violations which are the subject of the administrative civil penalties

proceeding. * * * [TJhis limitation would not apply to: (1) an action

seeking relief other than civil penalties (e.g., an injunction or declaratory

judgment) kee

H. Rep. No. 1004, 99th Cong., 2d Sess. 133 (1986)(emphasis added). Thus, even

if the plain language of the statute were not conclusive, the legislative history

leaves no doubt that Congress meant exactly what it said.

8

—_——— ”

The court of appeals recognized that Section 309(g)(6)

“makes no mention of whether a citizen could * * * bring an action

for declaratory or injunctive relief.” App. 13a. Nevetheless, the

court held that AWF’s claims for such relief were barred. In the

Eighth Circuit's view, permitting AWF to pursue its equitable

claims would be “unreasonable,” because it “could result in undue

interference with, or unnecessary duplication of the legitimate

efforts of the state agency.” App. 14a. Thus, the court of appeals

chose to disregard the statute’s plain meaning--and thus the

enforcement policy chosen by Congress--in favor of a policy that

it deemed more reasonable.

This approach is flatly inconsistent with basic principles of

statutory construction. As this Court stated in Commissioner of

Internal Revenue v. Asphalt Products Co., Inc., 482 U.S. 117, 121

(1987) (summary reversal):

Judicial perception that a particular result would be

unreasonable may enter into the construction of ambiguous

provisions, but cannot justify disregard of what Congress

has plainly and intentionally provided.

The Eighth Circuit's use of an “unreasonableness” standard of its

own devise to override the plain language of a statute is in direct

conflict with this principle.

The Eighth Circuit also overrode the plain statutory

language when it held that Arkansas’ administrative penalty orders

in this case met the “diligent prosecution” and “comparability”

requirements of Section 309(g)(6). Under that section, a citizen's

claim for civil penalties is precluded only if a state has commenced

and “is diligently prosecuting an action under a State law

comparable to this subsection.” 33 U.S.C. § 1319(g)(6)(A)(ii)

(emphasis added). The words “this subsection” refer to subsection

(g) of Section 309. In subsection (g), Congress required EPA to

follow very detailed and specific procedures when it issues an

administrative penalty order.

In subsection (g)(4), Congress directed that EPA must

provide public notice and opportunity for comment on proposed

EPA penalty orders before those orders are issued in final form:

Before issuing an order asssessing a civil penalty under this

subsection the Administrator or Secretary, as the case may

be, shall provide public notice of and reasonable

opportunity to comment on the proposed issuance of such

order.

33 U.S.C. § 1319(g)(4) (emphasis added). However, at the time

the CAOs were issued, Arkansas law did not contain “comparable”

public participation requirements.° It is undisputed that Arkansas

did not provide any public notice or opportunity to comment before

issuing the orders in this case. App. 47a.’

The court of appeals nonetheless held that Arkansas law is

comparable to subsection (g)(4) because, in its view, citizen

intervention to challenge an order after it is issued in final form is

comparable to commenting on a proposed order before it is

finalized. App. lla-12a. This holding rewrites the statute,

effectively substituting “after” for “before” and “final” for

“proposed.”

Diligence must also be measured in terms of the specific

penalty factors that Congress set out in subsection (g)(3):

In determining the amount of any penalty assessed under

‘In 1993, after the CAOs in this case were issued, Arkansas amended its

law to require public notice and comment on proposed penalties in its CAOs.

Ark. Code Ann. § 8-4-103(d)(Michie 1993).

7AWF submitted an affidavit by PC&E’s legal counsel in which he stated

that PC&E’s procedure is that “[nJo notice is given to the public of the proposed

CAO, nor is there a public comment period, either before or after the entry of the

CAO.” App. 47a.

10

. , |

this subsection, [EPA] * * * shall take into account the

nature, circumstances, extent and gravity of the violation,

or violations, and, with respect to the violator, ability to

pay, any prior history of such violations, the degree of

culpability, economic benefit or savings (if any) resulting

from the violation, and such other matters as justice may

require.

33 U.S.C. § 1319(g)(3) (emphasis added).

The record in this case clearly shows that Arkansas did not

even consider two of these factors when it assessed $2500 in

penalties against ICI: ICI’'s “economic benefit” from its delayed

compliance, and ICI's “ability to pay” a penalty. App. 41a-42a,

44a-45a. Consideration of these mandatory factors would

undoubtedly have resulted in much higher penalties. AWF's

unrebutted expert affidavit showed that ICI’s economic benefit from

its noncompliance was over $180,000 -- 72 times greater than the

penalty that was imposed. In addition, ICI is able to pay a much

higher penalty, because it is one of the world’s largest corporations

with annual U.S. revenues of $5 billion.

The state’s failure even to consider two of the statutory

penalty factors that Congress required EPA to evaluate when

making its penalty determinations is proof of a lack of diligence.

It would make no sense for Congress to, on the one hand, require

EPA to consider certain factors yet, at the same time, authorize

state enforcement agencies to ignore those same factors. The

Eighth Circuit's theory was that “[i]Jt would be unreasonable and

inappropriate to find failure to diligently prosecute simply because

ICI prevailed in some fashion or because a compromise was

reached.” App. 9a. However, the defect with the state's

prosecution in this case is much more serious. If states can ignore

the statutory penalty factors and courts nevertheless approve those

actions, the language requiring consideration of those factors is

effectively deleted from the statute.

11

The Eighth Circuit therefore ignored the plain meaning of

Section 309(g)(6) in two respects. It is plain that that section never

bars citizen claims for injunctive or declaratory relief. It is also

plain that section 309(g)(6) does not bar claims for civil penalties

where, as here, a state’s procedures for public participation and

penalty assessment are demonstrably inconsistent with the

mandatory federal procedures specifically set forth in that same

section.

II. The Court of Appeals' Decision Exacerbates the

Existing Split of Authority in the Courts.

The decision below exacerbates a conflict in the lower

courts concerning the proper interpretation of section 309(g)(6).

Three courts of appeals and at least 23 district court decisions have

considered whether government administrative orders satisfy the

conditions for preclusion under section 309(g)(6). Two conflicting

lines of authority have developed.

One line of authority follows the plain language of the

statute to determine whether a citizen suit is precluded. This line

is exemplified by the Ninth Circuit's decision in Washington PIRG

v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir. 1993), in which

the court decided that a citizen suit was not precluded by a prior

EPA administrative order under section 309(a) that ordered

compliance but imposed no penalties. The court relied on the plain

language of section 309(g)(6)(A), which makes preclusion

dependent on pursuit of a penalty “under this subsection,” thereby

referring only to EPA penalty orders under subsection (g), not EPA

compliance orders under subsection (a). The Ninth Circuit rejected

the defendant's argument that the court should look beyond the

plain language of the statute and embrace a general policy that

citizens can sue only when government has not taken any

enforcement action. The court stated that it was bound by the clear

statutory language, “not a court's sense of the general role of citizen

suits in the enforcement of the Act.” /d. at 886.

12

The other line of authority has gone beyond the plain

language of the statute to preclude citizen suits whenever there is

duplication between citizen and government actions. This line is

exemplified by the First Circuit's decision in North and South

Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552 (1st Cir.

1991). The First Circuit's analysis started not with the language of

Section 309(g)(6), but with the premise that “[t]he primary function

of *** citizen suits is to enable private parties to assist in

enforcement efforts where Federal and State authorities appear

unwilling to act.” Id. at 555. The court then “[p]resum[ed]” that,

when those authorities are willing to act, “the need for citizen's

suits vanishes.” Jd. From this premise, the court dismissed a

citizen suit because the state had issued a prior administrative

compliance order, even though the order was issued without public

notice and opportunity for comment and did not impose any

penalties. Jd. at 556, n.7. The court also dismissed the citizens’

claim for injunctive relief, on the ground that adherence to the

plain statutory language--which would have barred the penalty

claims but allowed the declaratory and injunctive relief claims to

go forward--led to an “absurd” result. Jd. at 557-58.

Decisions by other courts are readily classifiable into these

two categories. Courts following the plain language have found no

preclusion in 16 decisions because state procedures did not allow

comparable public notice and comment,’ claims for injunctive relief

*Save our Bays and Beaches v. City and County of Honolulu, Civ. No.

92-00263 (D. Hawaii, July 27, 1994); Tennessee Environmental Council v. Dana

Corp., Civ. No. 1:92-0074 (M.D. Tenn. Jan. 4, 1994); NRDC v. Vygen Corp., 803

F. Supp. 97, 101-02 (N.D. Ohio 1992); PIRG v. New Jersey Expressway Authority,

822 F. Supp. 174, 183-84 (D.N.J. 1992); PIRG v. GAF Corp., 770 F. Supp. 943,

951 (D.N.J. 1991); Pennsylvania Environmental Defense Foundation v. [Mount

Pocono Municipal Authority, Civil No. 90-1208 (M.D. Pa., May 14, 1991);

Atlantic States Legal Foundation, Inc. v. Universal Tool & Stamping Co., Inc.,

735 F. Supp. 1404, 1415-16 (N.D. Ind. 1990).

13

were raised,’ and/or the EPA or state orders imposed no penalties. *°

On the other hand, courts following the Scituate theory have found

preclusion in 10 decisions even though state procedures did not

allow comparable public notice and comment,’’ claims for

injunctive relief were raised,” and/or the state orders imposed no

penalties.'° The Eighth Circuit's decision below cited and relied on

the Scituate decision. App. 9a, 11la-14a.

°Orange Environment, Inc. v. County of Orange, No. 91-8688 (GLG),

1994 WL 45909 (S.D.N.Y. Aug. 22, 1994); Coalition for a Liveable West Side,

Inc. v. NYC Dept. of Environmental Protection, 830 F. Supp. 194, 196-97

(S.D.N.Y. 1993); New York Coastal Fishermen's Association v. New York City

Department of Sanitation, 772 F. Supp. 162, 169 (S.D.N.Y. 1991); PIRG v. Witco

Chemical Corp., 31 Env't Rep. Cases (BNA) 1571, 1576 (D.N.J. 1990).

Citizens for a Better Environment-California v. Union Oil Co. of

California, No. C94-0712 TEH (N.D. Cal., July 8, 1994); Washington PIRG v.

Pendleton Woolen Mills, supra, 11 F.3d at 885; PIRG v. New Jersey Expressway

Authority, supra, 822 F. Supp. at 184; Arkansas Wildlife Federation v. Bekaert

Corp., 791 F. Supp. 769, 775 (W.D. Ark. 1992); NRDC v. Fina Oil & Chemical

Co., 806 F. Supp. 145, 146 (E.D. Tex. 1992); SPIRG v. P.D. Oil & Chemical

Storage, Inc., Civ. No. 84-340A (D.N.J., Oct. 28, 1988).

"Scituate, supra, 949 F.2d at 556, n. 7; Arkansas Wildlife Federation v.

ICI Americas, Inc., 842 F. Supp. 1140, 1145-47 (E.D. Ark. 1993), aff'd, 29 F.3d

376 (8th Cir. 1994); Sierra Club v. Colorado Refining Co., 838 F. Supp. 1428,

1435-36 (D. Colo. 1993)("Colorado Refining I’); Saboe v. State of Oregon, 819

F. Supp. 914, 917-18 (D. Ore. 1993). See also Sierra Club v. Port Townsend

Paper Corp., 28 Env't Rep. Cases (BNA) 1676, 1679-80 (W.D. Wash. 1988).

2 Scituate, supra, 949 F.2d at 557-58; ICI, supra, 29 F.3d at 382-83.

Scituate, supra, 949 F.2d at 555-56; Sierra Club v. Colorado Refining

Co., 852 F. Supp. 1476, 1481-83 (D. Colo. 1994)("Colorado Refining IT"); Pape

v. Menominee Paper Co., No. 2:93-CV-236, 1994 U.S. Dist. LEXIS 10277 (W.D.

Mich., May 6, 1994); Connecticut Coastal Fisherman's Association v. Remington

Arms Co., Inc., 777 F. Supp. 173, 181-82 (D. Conn. 1991), aff'd on other grounds,

989 F.2d 1305 (2d Cir. 1993); New York Coastal Fishermen's Association v. New

York City Department of Sanitation, supra, 772 F. Supp. at 165; Atlantic States

Legal Foundation v. Tyson Foods, 682 F. Supp. 1186, 1187-89 (D. Ala. 1988).

14

' —_— -

A major source of this conflict in the lower courts arises

from varying interpretations of language in this Court's decision in

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484

U.S. 49 (1987). While the issue in that case was completely

different, the Court made several statements in dicta that Scituate

and its progeny have interpreted as a rule of preclusion that is

broader than the rule that Congress set forth in section 309(g)(6).

In Gwaltney, the Court decided that section 505 of the

FWPCA, which authorizes citizens to sue persons “alleged to be in

violation” of their NPDES permits, does not permit citizen suits for

wholly past violations -- that is, violations which occurred entirely

before the complaint was filed.'* The Court did not consider the

effect of parallel government enforcement actions. Neither EPA

nor the state had taken any enforcement action in that case.

Section 309(g) was not even mentioned, let alone discussed or

analyzed, in the Court's opinion.

Nevertheless, in reaching its decision, the Court made

several statements in dicta on preclusion which suggest a narrow

role for citizen enforcement. Those statements have become a

major source of the conflicting interpretations of section 309(g)(6)

by the lower courts.

First, the Court stated that the structure of the citizen suit

provision “suggests that the citizen suit is meant to supplement

rather than supplant governmental action” and is proper “if the

Federal, state and local agencies fail to exercise their enforcement

responsibility.” 484 U.S. at 60. Second, the Court stated that

giving citizens and government the same authority to sue for

wholly past violations “would change the nature of citizens’ roles

from interstitial to potentially intrusive.” Jd. at 61. Some courts,

including Scituate and the court below, have read these statements

broadly to imply that citizens compete with government enforcers

“In the present case, ICI continued violating its permit after AWF's

complaint was filed, so the district court had jurisdiction under the Gwalmey test.

15

for the same public remedy and that any duplication between

citizen and government enforcement is impermissible.° These

courts conclude that, if the government has fulfilled its primary role

and taken enforcement action, citizens have no role left to play.

This simplistic argument misinterprets Gwaltmmey. This

Court's statement was merely a general description of the

Congressional scheme, not an invitation to rewrite it.

Unquestionably, citizen suits do “supplement,” i.e., “add to,”

agency enforcement. Citizens can supplement agency enforcement

by commencing suits whenever the specific preclusion rules are not

met. Furthermore, citizen suits cannot “supplant,” i.e., “supersede ,”

agency enforcement. EPA and the states always have the ultimate

power to block or limit a citizen suit by taking several types of

judicial and administrative action.’° However, it is far too great a

conceptual leap to use this Court's “suggestion” as a finding that

Congress intended to bar citizen suits whenever a government

'SThe courts have quoted and relied on the “supplement or supplant”

phrase in nine decisions in which preclusion was found. Scituate, supra, 949 F.2d

at 555, 558; ICI, supra, 842 F. Supp. at 1147; Colorado Refining I, supra, 838 F.

Supp. at 1436; Colorado Refining II, supra, 852 F. Supp. at 1483; Pape, supra,

1994 U.S. Dist. LEXIS 10277, *8; Saboe, supra, 819 F. Supp. at 918-19;

Remington Arms, supra, 777 F. Supp. at 180; New York Coastal Fishermen, supra,

772 F. Supp. at 165. The courts have also quoted and relied on the “interstitial

to potentially intrusive” phrase. JCI, supra, 29 F.3d at 380; Tyson, supra, 682 F.

Supp. at 1189.

‘SEPA or a state can completely block a citizen suit by filing a prior

lawsuit. 33 U.S.C. § 1365(b). They can preclude a civil penalty claim by

commencing an administrative penalty action before the citizen’s notice letter is

sent. 33 U.S.C. § 131%g)(6). EPA has an absolute right to intervene in any

citizen suit. 33 U.S.C. § 1365(c)(2). In addition, the filing of a citizen suit does

not bar EPA or a state from filing a subsequent judicial or administrative action

involving the same violations. Antrim Mining, Inc. v. Davis, 775 F. Supp. 165

(M.D. Pa. 1991); U.S. v. Atlas Powder, 26 Env't Rep. Cases (BNA) 1391 (E.D.

Pa. 1987).

16

agency has taken any type of enforcement action.””

Scituate and its progeny have made that leap and

transformed that “suggestion” into a substantive law of preclusion

which is far broader than the language of the statute. Gwaltney

offers no support for such a transformation. Rather, Gwaltney

stressed that “the language of the statute itself’ must be the focal

point of analysis in FWPCA cases. 484 U.S. at 56. The Court

found that the phrase “to be in violation” in section 505(a) of that

Act was ambiguous and looked to legislative history and the

structure of the statute to help determine its meaning. Jd. at 57,

61-63. In general, however, the Court found “no reason to believe

that Congress’ drafting of § 505 was sloppy or haphazard.” Jd. at

65.

In Pendleton and similar cases, the Ninth Circuit and other

courts have rejected the Scituate interpretation of Gwalmey on

precisely this basis. The Ninth Circuit stated that the “supplement

rather than supplant” language in Gwaltney “cannot persuade us to

abandon the clear language that Congress used when it drafted the

statute.” 11 F.3d at 886. Similarly, in Coalition for a Liveable

West Side v. NYC Dept. of Environmental Protection, supra, 830

F. Supp. at 197, the district judge considered this language in

Gwaliney but held that “[t]he language of § 1319(g)(6) is clear and

unambiguous” and that there is “no basis for the First Circuit's

redrafting of the statute.”

In section 309(g)(6), Congress did not prohibit any

duplication between citizen and government enforcement. Congress

instead adopted a rule of limited preclusion which allows some

‘This conclusion also rests on the false premise that § 309(g)(6) divides

the enforcement arena between federal and state governments on the one hand and

Citizens on the other. In fact, as we have shown above, that section creates no

such division. If a state administrative penalty action meets the conditions of that

section, the violations covered by that action are immune from both citizen and

EPA enforcement.

17

duplication between government and citizen enforcement if the

government enforcement action does not meet the statutory

conditions for preclusion. Those conditions relate to the scope of

the government action, the time it is filed, and the diligence with

which it is prosecuted.’* Congress’ rule of limited preclusion

"strikes a balance between two competing concems: the need to

avoid placing obstacles in the path of *** citizen suits and the

desire to avoid subjecting violators of the law to dual enforcement

or penalties for the same violation.” S. Rep. No. 50, 99th Cong.,

Ist Sess. 28 (1985).

This Court should take this opportunity to instruct the

lower courts that the plain language of section 309(g)(6), and not

this Court's dicta in Gwalmey, determine whether a citizen suit is

precluded.

CONCLUSION

The Court should grant this petition for a wnt of certiorari.

Respectfully submitted,

James M. Hecker

(Counsel of Record)

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave., N.W. Suite 800

Washington, D.C. 20036

(202) 797-8600

Section 309%g)(6)(B) defines two situations in which, based on the

relative timing of the two actions, a citizen suit is not precluded by a later

government action, even though there may be a complete overlap between the

violations alleged in the two actions. 33 U.S.C. § 1319(g)(6)(B). The courts have

followed the plain language of this subsection and allowed citizen suits to

proceed. E.g., PIRG v. Hercules, Inc., 830 F. Supp. 1525, 1539 (D.N.J. 1993).

18

Samuel E. Ledbetter

Nichols, Wolff, Ledbetter & Campbell

200 W. Capitol St., Suite 1650

Little Rock, AR 72201

(501) 372-5659

Attorneys for Petitioner

19

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-2181

Arkansas Wildlife Federation,

Appellant,

v.

ICI Americas, Inc.,

United States of America,

Amicus Curiae.

Arkansas Environmental Federation;

Associated Industries of Arkansas,

Inc.; American Iron and Steel Institute; )

The American Petroleum Institute; The )

Chamber of Commerce of the United )

States; National Agricultural Chemi- )

cals Association; Acme Metals, Incor- )

porated; Chevron Corp.; GAF Corpor- )

ation; General Electric Company; )

Hoechst Celanese Corporation; Murphy )

Oil USA, Inc.; Owens-Coming Corp- )

ation; PMC, Inc.; Sandoz Pharmaceu- )

ticals Corporation; Shell Oil Company; )

)

)

)

)

)

)

)

)

Appellee. )

)

)

)

)

)

)

)

)

la

Appeal from the

United States

District Court

for the Eastern

District of

Arkansas

Total Petroleum, Inc.; Witco Corpor- )

ation, )

Amici Curiae. )

Submitted: December 13, 1993

Filed: July 7, 1994

Before McMILLIAN, FAGG and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Arkansas Wildlife Federation (AWF) appeals from a final

order entered in the United States District Court’ for the Eastern

District of Arkansas granting summary judgment in favor of ICI

Americas Inc. (ICI), and dismissing AWF’s action against ICI

pursuant to the citizen suit provision of the federal Clean Water

Act (CWA), 33 U.S.C. § 1365. Arkansas Wildlife Fed’n v. ICI

Americas Inc., 842 F. Supp. 1140 (E.D. Ark 1993). For reversal,

AWF argues that the district court erred in holding that (1) AWF's

action was jurisdictionally barred under 33 U.S.C. §

1319(g)(6)(A)(ii), (2) the jurisdictional bar applied to all of ICI’s

past violations of the CWA, and (3) the jurisdictional bar covered

claims for declaratory and injunctive relief, as well as civil

penalties. For the following reasons, we affirm the order of the

district court.

I. Background

ICI operates a herbicide manufacturing plant in North Little

Rock, Arkansas. In 1988, ICI received a permit from the Arkansas

'The Honorable Stephen M. Reasoner, Chief Judge, United States

District Court for the Eastern District of Arkansas.

2a

Department of Pollution Control and Ecology (ADPC&E), under

the Federal National Pollutant Discharge Elimination System

(NPDES) permit program, for wastewater discharge from three

point sources (outfalls 001, 002, 003) into waters that flow to the

Arkansas River. Pursuant to 33 U.S.C. § 1342, the United States

Environmental Protection Agency (EPA) has delegated authority to

the State of Arkansas to issue NPDES permits.

Based upon sampling reports that ICI had submitted to

ADPC&E, the agency sent notices to ICI during a period of over

two years, from late 1988 to early 1991, informing ICI that it was

violating pollutant discharge limits mandated under ICT's NPDES

permit. By letter dated February 15, 1991, ADPC&E informed ICI

that it was subject to enforcement action under the Arkansas Water

and Air Pollution Control Act, Ark. Code Ann. § 8-4-101 et seq.,

and requested a meeting. At a meeting on March 5, 1991, ICI

representatives presented ADPC&E with a compliance action plan.

The parties agreed to enter into a Consent Administrative Order

(CAO). The CAO, effective April 16, 1991, required ICI to pay a

civil penalty of $1,000 and to report on its remedial actions and

come into compliance with the effluent limitations under the

NPDES permit within thirty days. The CAO alternatively required

ICI to submit a report setting forth a revised plan for expeditious

compliance if ICI were to anticipate failure to comply by the end

of the thirty-day period. The CAO stated that it was in full

settlement of the civil penalties for violations specified in the

Findings of Fact, which listed some, but not all, of ICI’s past

violations. On September 9, 1991, ICI and ADPC&E executed a

corrected CAO which modified the original CAO by specifically

incorporating all of ICI’s past violations.

By-December of 1991, ICI was not in compliance with the

effluent limitations under the NPDES permit. On December 26,

1991, ICI asked ADPC&E to extend the compliance deadline to

April 30, 1992. ICI’s written request contained a summary of ICI's

remedial efforts thus far and alleged a need for more time to

investigate sources of zinc contamination. ADPC&E granted the

3a

extension and assessed another penalty of $500. In March of 1992,

ICI requested a construction permit to lay new piping that would

combine the existing three outfalls (001, 002, and 003) into one

new outfall (004). ICI represented to ADPC&E that the effluent

levels from outfall 004 would fully comply with the limitations

under the NPDES permit. ADPC&E granted the construction

permit and, on April 30, 1992, issued an amended corrected CAO,

which imposed another $500 penalty and required compliance with

the NPDES permit by December 15, 1992, except for the zinc

limitations.

After completing construction of the new piping, ICI filed

for a revised NPDES permit to address the discharge from new

outfall 004. Rather than issue a new NPDES permit, ADPC&E

issued a second amended CAO, which terminated the existing

requirements for outfalls 001, 002, and 003 and imposed sampling

and reporting requirements for new outfall 004.7 ICI was again

assessed a penalty of $500. This amended CAO, issued in January

of 1993, imposed the same effluent limitations as before, except

that there was no limitation for zinc levels. It was effective until

October 31, 1993, the date on which ICI’s NPDES permit would

expire.

In the meantime, on July 2, 1991, after the original CAO

was issued, but before any of the corrections or amendments to the

CAO were issued, AWF gave ICI notice of its intent to file this

citizen suit under the CWA. On October 15, 1991, within 120

days of the notice, AWF filed its complaint alleging ICI’s ongoing

violations of the CWA and seeking civil penalties, declaratory

relief, injunctive relief, and the costs of litigation.

On November 5, 1991, ICI moved to dismiss AWF's

complaint. The district court denied ICI’s motion without prejudice

The State did not grant the revised NPDES allegedly because at that

time EPA was in the process of changing the federal standards for metals,

including zinc.

4a

and allowed limited discovery. After further discovery, ICI filed

a motion for summary judgment on the grounds that AWF’s suit

was jurisdictionally barred under 33 U.S.C. § 1319(g)(6)(A)(ii) and

(iii).2 AWF opposed the motion and filed cross-motions for

summary judgment and for injunctive relief. By order of April 8,

1993, the district court granted ICI’s motion for summary judgment

and dismissed AWF’s motions as moot. The district court held that

AWF’s action was jurisdictionally barred because 33 U.S.C. §

1319(g)(6)(A)(ii) precludes citizen suits for violations “with respect

to which a State has commenced and is diligently prosecuting an

action under a State law comparable to [33 U.S.C. § 1319(g)].”

The district court further held that the jurisdictional bar applied to

all of ICI’s past violations of the CWA and covered claims for

declaratory and injunctive relief, as well as civil penalties.

Arkansas Wildlife Fed’n v. ICI Americas Inc., 842 F. Supp. 1140

*Subsections 1319(g)(6)(A)(ii)and (iii) provide in pertinent part:

(6) Effect of Order

(A) Limitation on actions under other sections

Action taken by the Administrator or the Secretary, as the case

may be, under this subsection shall not affect or limit the

Administrator's or Secretary's authority to enforce any provision of this

chapter; except that any violation —- * * *

(ii) with respect to which the State has commenced and is

diligently prosecuting an action under a State law comparable

to this subsection, or

iii) for which the Administrator, the Secretary, or the State

has issued a final order not subject to further judicial review

and the violator has paid a penalty assessed under this

subsection, or such comparable State law, as the case may be,

shall not be the subject of a civil penalty action under subsection (4) of.

this section or section 1321 (b) of this title or section 1365 of this title.

Sa

(E.D. Ark. 1993). AWF appealed.*

II. Discussion

We review a grant of summary judgment de novo. The

question before the district court, and this Court on appeal, is

whether the record, when viewed in the light most favorable to the

non-moving party, shows that there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Cattrett, 477 U.S. 317,

322-23 (1986). Where the unresolved issues are primarily legal

rather than factual, summary judgment is particularly appropriate.

Crain v. Board of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th

Cir. 1990). In the present case, the facts were not in material

dispute. Rather, the district court disposed of the case based upon

its determinations of law. We must now decide whether the district

court applied correct legal standards on issues which have not

previously been presented to this Court.

A. Jurisdictional bar

We must first decide whether, in dismissing AWF’s action

as jurisdictionally barred, the district court correctly applied the

criteria set forth in 33 U.S.C. § 1319(g)(6)(A)(ii) to the facts of the

present case. Specifically, the district court concluded that

ADPC&E had commenced and was diligently prosecuting an

administrative penalty action against ICI under an Arkansas law

comparable to 33 U.S.C. § 1319(g). The district court also

concluded that the jurisdictional bar applied to all of ICI’s past

violations, even though the original CAO only referred to some, but

not all, past violations, and the correction which incorporated the

remaining past violations was made by ADPC&E after AWF gave

“On this appeal, amicus briefs have been filed by the United States

Department of Justice in support of AWF, and a coalition of trade associations and

corporations in support of ICI. For the sake of simplifying the discussion,

arguments of amici are incorporated into the arguments of the parties.

6a

notice of its intent to file this suit.

AWF first argues that ADPC&E did not “commence” a

civil penalty action against ICI by filing the original CAO on April

16, 1991, because, under ADPC&E's own regulations, ADPC&E

was required to issue a formal “Notice of Violation” in order to

initiate an enforcement action. AWF argues that discussion and

issuance of a CAO are intended to precede enforcement actions, not

commence them. In support of this argument, AWF notes that

none of the usual notice and hearing procedures designed to protect

and give access to the public and interested parties are triggered by

the execution of CAO, whereas those procedures would be

triggered by the issuance of a formal Notice of Violation.

In response, ICI contends that, according to the applicable

State regulations, ADPC&E may commence enforcement

proceedings either by issuing a Notice of Violation or by filing a

CAO (or other similar administrative pleading) with the Secretary

of the Arkansas Pollution Control and Ecology Commission. The

latter approach initiates formal adjudicatory proceedings; a docket

number is assigned to the matter, for example, and interested

parties have a right to intervene.

Consistent with our analysis below of the criterion that the

State regulatory scheme must be “comparable” to the federal

scheme, we hold that the states are afforded some latitude in

selecting the specific mechanisms of their enforcement program.

The regulations promulgated by ADPC&E provide in pertinent part:

Except as otherwise provided in Part IV [referring

to emergency and/or imminent hazard actions] the

Director shall not issue an order, except by

consent, to any person for violation of the laws

and regulations administered by the Department

unless and until such person has been served with

a Notice of Violation and had the opportunity to

request an adjudicatory hearing thereon in

7a

4 accordance with the provisions of this Part.

ADPC&E Reg. No 8, Part V, § 2(a)(emphasis added). In the

present case, ADPC&E issued an order to ICI with ICI’s consent.

ADPC&E was therefore not required to issue a Notice of Violation

under the regulation cited above. Once the ADPC&E issued the

CAO, interested third parties had a right to intervene, and certain

notice and hearing procedures became available to interested third

parties. Moreover, ICI became subject to further penalties for

failure to comply with the CAO. Therefore, we agree with the

district court that ADPC&E “commenced” an action within the

meaning of 33 U.S.C. § 1319(g)(6)(A)(ii), when it issued the

original CAO on April 16, 1991.

AWF also claims that the district court erred in holding that

ADPC&E was “diligently prosecuting” an enforcement action

against ICI, within the meaning of 33 U.S.C. § 1319(g)(6)(A)(ii).

AWF argues that ADPC&E repeatedly and unnecessarily

abandoned nearly all of_its enforcement powers, failed to address

ICI's violations, gave ICI repeated extensions for compliance, and

assessed insignificant amounts of civil penalties in comparison to

the amounts of ICI’s economic benefit and the maximum penalties

authorized under the CAO. AWF claims, for example, that

ADPC&E assessed only a few $500 penalties for ICI’s repeated

failures to meet the compliance deadlines under the CAO and yet,

by contrast, the daily penalties authorized under the CAO could

have totaled as much as $170,000.

In response, ICI emphasized that, from the time the original

CAO was issued, ADPC&E required ICI to correct the violations,

imposed a compliance and reporting schedule, regularly assessed

monetary penalties, and reserved the right to assess additional

penalties. ICI submitted and implemented a comprehensive

remedial action plan, spent approximately half a million dollars

making technological changes, and ultimately did come into

compliance with the effluent standards under the NPDES permit.

ICI argues that the penalties assessed by ADPC&E reasonably

8a

sow endorse ii i agenda

reflected the history and seriousness of ICI's past violations and

took into consideration ICI’s financial commitment in implementing

technological improvements. Finally, ICI highlights evidence that

the penalties assessed were comparable to penalties assessed by

ADPC&E in similar cases.

We agree with the district courts conclusions that

ADPC&E was “diligently prosecuting” its administrative penalty

action against ICI. In Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., 484 U.S. 49, 60-61 (1987)(Gwaltney), the Supreme

Court explained that Congress intended citizen suits brought

pursuant to 33 U.S.C. § 1365 to play an “interstitial,” rather than

“potentially intrusive” role, that such suits are proper only when the

federal, state, or local agencies fail to exercise their enforcement

responsibility, and that such suits should not considerably curtail

the governing agency's discretion to act in the public interest. In

North & South Rivers Watershed Ass'n v. Town of Scituate, 949

F.2d 552, 557 (1st Cir. 1991)(Scituate), the First Circuit suggested

that courts must afford appropriate deference to the expertise of the

agency enforcing the state’s environmental laws. It would be

unreasonable and inappropriate to find failure to diligently

prosecute simply because ICI prevailed in some fashion or because

a compromise was reached. Connecticut Fund for the Env't v.

Contract Plating Co., 631 F. Supp. 1291, 1294 (D. Conn. 1986).

We therefore hold that, under the facts of the present case,

ADPC&E was “diligently prosecuting” an administrative penalty

action against ICI, within the meaning of 33 U.S.C. §

1319(g)(6)(A){ii).

Third, AWF argues that the Arkansas enforcement

provisions are not “comparable” to the CWA, as required under 33

U.S.C. § 1319(g)(6)(A)(ii), particularly with respect to the public

notice and comment provisions of § 1319(g)(4)(A). The federal

Statute requires that “[b]efore issuing an order assessing a civil

penalty under this subsection the Administrator [of EPA] . . . shall

provide public notice of and reasonable opportunity to comment on

the proposed issuance of such order.” 33. U.S.C. § 1319(g)(4)(A).

9a

ee

AWF argues that the Arkansas statute is not comparable because it

only provides an ex post facto citizen's right to intervene, with no

public notice at any time, and no opportunity to comment while the

consent order is being proposed.

AWF relies upon NRDC v. Vygen Corp., 803 F. Supp. 97,

100-02 (N.D. Ohio 1992)(Vygen), in which the District Court for

the Northern District of Ohio held that Ohio’s state laws were not —

comparable to the CWA, for purposes of applying 33 U.S.C. §

1319(g)(6)(A)(ii), because the state law lacked mandatory

procedures for public participation prior to the imposition of a civil

penalty. In Vygen, the district court held “since Ohio law has no

mandatory public notice requirement, nor a requirement of public

notice and opportunity to be heard prior to the issuance of a civil

penalty, Ohio's provisions are not comparable to § 1319(g), and

plaintiffs’ claim is not barred by Ohio's administrative orders.” 803

F. Supp. at 102; see also Atlantic States Legal Found. v. Universal

Tool & Stamping Co., 735 F. Supp. 1404, 1415-16 (N.D. Ind.

1990).

In response, ICI argues that the term “comparable” means

that the state law need only be sufficiently similar to the federal

law, not identical. ICI argues that Arkansas law is sufficiently

similar because it adequately provides a meaningful opportunity for

public participation in the enforcement process. ICI notes that

copies of permits, permit applications, and related documentation

(e.g., consent orders) are publicly available, Ark. Code Ann. § 8-4-

207(6)(A), and that anyone may submit comments, request an

adjudicatory hearing, and be made a party to the relevant

proceedings. ADPC&E Reg. No. 8, Part VII, § 1. The regulations

also provide that any person who either has a statutory right to

intervene or has an interest that may be adversely affected by the

outcome of the proceeding is entitled to intervene at any stage of

the enforcement proceeding by filing a timely petition. ADPC&E

Reg. No. 8, Pat VII, § 5. ICI contends that by providing these

rights and procedures, Arkansas law satisfies the comparability

requirement.

10a

In Scituate, the appellants claimed that the Massachusetts

Clean Waters Act, was applied in that case, was not comparable to

the federal CWA. The First Circuit rejected that argument Stating

that “[t]he focus of the statutory bar to citizen’s suits is not on state

Statutory construction, but on whether corrective action already

taken and diligently pursued by the government seeks to remedy

the same violations as duplicative civilian action.” 949 F.2d at

556. The First Circuit held that the Massachusetts law, which is

virtually identical to the Arkansas law with respect to interested

third-party intervention, was sufficiently “comparable” to the public

participation provisions under the federal CWA. Id. at 556 & n.7;

see also Saboe v. Oregon, 819 F. Supp. 914, 918 (D. Or. 1993);

Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co.,

777 F. Supp. 173, 182-83 (D. Conn. 1991), rev‘d in part on other

grounds, 989 F.2d 1305 (2d Cir. 1993). The common thread

running through these cases is a finding that the overall regulatory

scheme affords significant citizen participation, even if the state law

does not contain precisely the same public notice and comment

provisions as those found in the federal CWA. We agree with the

reasoning in Scituate that the comparability requirement may be

Satisfied so long as the state law contains comparable penalty

provisions which the state is authorized to enforce, has the same

overall enforcement goals as the federal CWA, provides interested

citizens a meaningful opportunity to participate at significant stages

of the decision-making process, and adequately safeguards their

legitimate substantive interests. 949 F.2d at 556 & n7. Under

those circumstances, the state statute should be presumed

comparable unless the facts of the specific case demonstrate’ that

the state denied an interested party a meaningful opportunity to

participate in the administrative enforcement process. Notably, on

the facts of the present case, AWF had actual notice of ADPC&E’s

issuance of the CAO when it inspected ADPC&E’s files five

months before this lawsuit was filed. AWF could have intervened

in the administrative process but instead chose to collaterally attack

the enforcement action through this federal lawsuit. We have no

reason to believe that AWF would have been denied meaningful

participation in the administrative process had it intervened. We

lla

therefore hold that the Arkansas statute is “comparable” to 33

U.S.C. § 1319(g) for purposes of applying 33 US.C. §

1319(g)(6)(A)(ii) to the present case.°

B. Civil penalties

AWF separately argues that it should at least have been

permitted to seek civil penalties for violations not specifically

addressed in the original April 1991 CAO. AWF relies on 33

U.S.C. § 1319(g)(6)(B)(ii), which provides that a citizen suit will

be allowed, despite a state administrative enforcement action, if

notice was served prior to the commencement of the state action

and the citizen suit was filed within 120 days of the notice. AWF

sent its notice of intent to sue to ICI after the original CAO was

issued but before the corrected CAO was issued on September 9,

1991, specifically incorporating all of ICI’s past violations. AWF's

argument assumes that, if the original CAO “commenced” a state

administrative enforcement action, then each corrected or amended

CAO also “commenced” a new and separate administrative action.

In response, ICI argues, and we agree, that the district court

correctly found that the original CAO, and the corrected and

amended CAOs, were all part of a single ongoing enforcement

action and therefore § 1319(g)(6)(B)(ii) does not apply.

c. Declaratory and injunctive relief

Finally, AWF argues that the district court erred in

dismissing its claims for declaratory and injunctive relief, instead

of dismissing only the claims for civil penalties. Citing Scituate,

*AWF also argues that the district court's reliance on 40 C.F.R. § 123.27

as support for its comparability finding is misplaced because that regulation refers

to EPA's requirements for delegating NPDES permitting authority to the states, not

the standard for precluding citizens suits, which are specifically imtended to

complement federal and state agency enforcement. We agree with AWF that 40

C.F.R. § 123.27 is not particularly germane to the comparability analysis for

purposes of applying 33 U.S.C. § 131%g)(6)(A)ii).

12a

949 F.2d at 557-58, the district court reasoned that policy

considerations which prevent AWF from bringing claims for civil

penalties equally apply to AWF’s claims for declaratory and

injunctive relief.

AWF relies on the language of the relevant statute for the

proposition that the jurisdictional bar on citizen suits, when

applicable, only applies to claims for civil penalties. Section

1319(g)(6)(A) provides that a violation that is being prosecuted by

the state in an administrative enforcement action shall not be the

subject of a “civil penalty action” brought pursuant to 33 U.S.C. §

1365, but makes no mention of whether a citizen could otherwise

bring an action for declaratory or injunctive relief. Section

1319(g)(6)(B) also refers to the limitation in subparagraph (A) on

“civil penalty actions” under 33 U.S.C. § 1365. By contrast, 33

U.S.C. § 1365(a) clearly contemplates declaratory and injunctive

relief, in addition to civil penalties, as possible remedies in citizen

Suits; it provides that “[tJhe district courts shall have jurisdiction .

. . to enforce . . . an effluent standard or limitation.” AWF urges

this Court to adopt the holding in Coalition for a Liveable West

ide _v. New ._ Protecti 830 F. Supp.

194, 196-97 (S.D.N.Y. 1993). In that case, the district court

rejected the contrary holding in Scituate as follows:

I find no basis for the First Circuit's redrafting of

the statute. The language of § 1319(g)(6) is clear

and unambiguous. Its bar applies only to civil

penalty actions. Nor do I find any basis for the

assertion that such a rule is irrational. As written,

§ 1319(g)(6) ensures that an entity that has

violated the CWA will not be subject to

duplicative civil penalties for the same violations.

On the other hand, the statute permits a federal

district court to entertain an action for injunctive

relief for situations where, for example, a permit

holder may have paid the relevant civil penalties

but continues to violate its permit limitations or

13a

where the injunctive relief obtained in the state

proceedings turns out to be inadequate to address

the violations at issue. -

830 F. Supp. at 197.

ICI, in response, relies heavily on Scituate. The First

Circuit reasoned in Scituate that, in spite of the plain language of

the statute, it would be not only “undesirable,” but “absurd,” to

preclude citizens’ claims for civil penalties, but not declaratory and

injunctive relief. 949 F.2d at 557-58. ICI also relies on Gwaltney,

in which the Supreme Court held "[33 U.S.C. § 1365] does not

authorize civil penalties separately from injunctive relief; rather the

two forms of relief are referred to in the same subsection, even in

the same sentence.” 484 U.S. at 58.°

We do not go so far as to say that it would be “absurd” to

preclude citizens’ claims for civil penalties without also precluding

claims for declaratory and injunctive relief under the same

circumstances. However, we agree with the First Circuit's

assessment of such a result as “unreasonable.” Allowing suits for

declaratory and injunctive relief in federal court, despite a state's

diligent efforts at administrative enforcement, could result in undue

interference with or unnecessary duplication, of the legitimate

efforts of the state agency. We believe that such a result would

undermine, rather than promote, the goals of the CWA, and is not

the intent of Congress. Accordingly, we hold that the district court

did not err in dismissing AWF’s entire action, including its claims

for declaratory and injunctive relief.

For the foregoing reasons, the order of the district court is

°AWF distinguishes the present case from Gwaltney on grounds that, in

Gwalmey, the Supreme Court addressed whether civil penalties could be sought

in the absence of a claim for injunctive relief, not the converse situation presented

here. In the present case, the issue is whether declaratory and injunctive relief

may be sought in the absence of a claim for civil penalties.

14a

affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

15a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-2181EALR

Arkansas Wildlife Federation, *

Appellant, .

: Order Denying Petition

vs. ” for Rehearing and

° Suggestion for Rehearing

ICI Americas, Inc. ad En Banc

Appellee.

The suggestion for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

August 12, 1994

Order Entered at the Direction of the Court:

s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

16a

PE a tl mt wd By C8, mw bese

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ARKANSAS WILDLIFE FEDERATION )

Plaintiff,

v. No. LR-C-91-681

ICI AMERICAS INC.,

Defendant.

ORDER

Presently before the Court is Defendant's Motion for

Summary Judgment (Document #26). For the reasons stated

herein, the motion is granted and plaintiffs complaint is dismissed.

I. FACTS

On September 30, 1988 the Arkansas Department of

Pollution Control & Ecology (ADPC & E) issued Federal National

Pollutant Discharge Elimination System (NPDES) Permit No.

AR0042901 to defendant, ICI Americas, Inc. (ICI). ICI is engaged

in the production of liquid and granular thiocarbamate and

organophosphate herbicides. ICI’s North Little Rock facility

discharges wastewater into the Arkansas River.

During December, 1988 through February, 1991, ADPC &

E sent notices to ICI informing it that it had committed violations

of various limits contained in its NPDES permit ADPC & E

requested a meeting with ICI by letter dated February 15, 1991,

which informed ICI that it was subject to enforcement action under

the Arkansas Water and Air Pollution Control Act (AWAPCA).

17a

During that meeting, Irvin Wheeler, ICI North Little Rock Plant

Manager, and R. Hayes Baber, ICI Quality Control Supervisor,

presented Mark Bradley, Enforcement Engineer in the NPDES

Enforcement Section, and Joseph Williford, ADPC &E

Enforcement Supervisor, NPDES Enforcement Division, with a

copy of an ICI NPDES Compliance Project Action Plan dated

February 28, 1991. A settlement was reached whereby the parties

agreed to execute a Consent Administrative Order (CAO) which

required ICI to pay a $1,000 civil penalty and implement the

measures in the ICI NPDES Compliance Project Action Plan. The

CAO was effective April 16, 1991.

A Corrected CAO was reissued on September 9, 1991.

The Corrected CAO reflects that ICI had agreed to pay the $1,000

civil penalty in full settlement of all permit violations occurring up

to the date of the Order. It also left open the possibility of future

remedies or sanctions by ADPC & E.

On July 2, 1991, plaintiff, Arkansas Wildlife Federation,

notified ICI that it intended to file the present lawsuit. Plaintiff

filed the Complaint on October 15, 1991, less than 120 days after

their notice was given.

On December 26, 1991, ICI filed a Request for Extension

of Schedule of Compliance with ADPC & E. The request asked

for a continuance of the compliance date to April 30, 1992 so that,

according to ICI, it could be allowed to further investigate sources

of zinc contamination and make any necessary changes. On

December 27, 1991, ADPC & E granted the request as reasonable

and required ICI to pay another $500.00 administrative penalty for

noncompliances occurring after the date of the Corrected CAO.

On March 13, 1992, ICI requested authorization to lay

additional piping to combine outfalls into one outfall. ICI

represented that by doing so, it could demonstrate compliance with

all permit limits. On April 2, 1992, ADPC & E approved ICI's

request and issued Construction Permit No. 42901C1. On April 30,

18a

1992, ADPC & E amended the CAO to allow ICI until December

15, 1992 to come into compliance with the terms and conditions of

its NPDES Permit. The amendment levied an additional $500.00

in penalties but provided that ICI would not be assessed any

additional penalties for the presence of zinc as long as it complied

with the terms of the CAO.

On January 7, 1993, ADPC & E and ICI entered into

Amendment #3 (Nunc Pro Tunc) to Corrected Consent

Administrative Order. This third amendment states:

Effective on December 15, 1992, and continuing until Oct.

31, 1993, all reporting for Outfalls 001, 002, and 003 shall

be terminated and the Permittee will not be required to

conduct sampling at these points. Effective on Dec. 15,

1992 and continuing until Oct. 31, 1993, the Permittee

shall monitor and report discharge from Outfall 004 as

established under Construction Permit No. 42901C1. The

discharge limitations for Outfall 004 shall be the same as

those specified for Outfall 001 under the existing permit

number ARO042901 (Page 1A of Part 1), with the

exception of Zinc, Total Recoverable. The requirement for

Zinc, Total Recoverable, shall be “report only” for Outfall

004 with this limitation also expiring on Oct. 31, 1993.

The amendment further states that there were no violations of

Amendment No. 2 to the CAO. Nevertheless, the amendment

required ICI to pay a civil penalty of $500.00 “in compromise and

full settlement of any claims for civil penalties.”

Defendant has now moved for summary judgment.

According to its brief, defendant claims that:

the limitations to citizen suits in section 309(g)(6)(A)(ii)

and (iii) of the Clean Water Act, 33 U.S.C. §

1319(G)(6)(a)(ii) and (iii), bar Plaintiff from bringing this

action because the Arkansas Department of Pollution

19a

Control & Ecology ... has prosecuted an administrative

enforcement action against ICI for the same NPDES permit

violations pursuant to Arkansas law, which is comparable

to the administrative enforcement provisions in the Clean

Water Act, and (1) the enforcement action has resulted in

the issuance of final orders that are no longer subject to

judicial review and the payment of civil penalties by ICI;

or alternatively, (2) the enforcement action has been and

continues to be diligently prosecuted by the ADPC & E.

DEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY

JUDGMENT at 2.

Il.

33 U.S.C. § 1319(g)(6)(A) (ii) and (iii)

33 U.S.C. § 1319(g)(6)(A) provides in pertinent part that:

Action taken by the Administrator or the Secretary, as the

case may be, under this subsection shall not affect or limit

the Administrator's or Secretary's authority to enforce any

provision of this chapter; except that any violation --

(i) with respect to which the Administrator

or the Secretary has commenced and is diligently

prosecuting an action under this subsection,

(ii) with respect to which the State has

commenced and is diligently prosecuting an action

under a State law comparable to this subsection, or

(iii) for which the Administrator, the

Secretary, of the State has issued a final order not

subject to further judicial review and the violator

has paid a penalty assessed under this subsection,

or such comparable State law, as the case may be,

shall not be the subject of a civil penalty action under

20a

subsection (d) of this section or section 1321(b) of this title

or section 1365 of this title.

The Court will address defendant's § 1319(g)(6)(A)(ii) argument

first.

A. _ Section 1319(g)(6)(A)(ii)

1. “Commenced” and “Violation”

Defendant states that ADPC & E has “commenced” an

action addressing every violation raised by plaintiff. This Court

has previously found in the Order of April 23, 1992, that ADPC &

E commenced an action by issuing the CAO on April 16, 1991,

and sees no reason to disturb that finding. Thus, the remaining

issue is whether the CAO and the amendments thereto were

intended to cover all violations alleged by plaintiff.

Defendant argues that the language of the Corrected CAO

demonstrates that the original CAO was intended to cover all

violations occurring to that point. The Corrected CAO states:

In compromise and full settlement of all violations

occurring up to and including the date this Order is

executed by the Director of the ADPC & E, including

those specified in the Findings of Fact, the permittee agrees

to pay to ADPC & E the total sum of One Thousand

Dollars ($1,000) as a voluntary civil penalty.

DEFENDANTS EXHIBIT 8 at 5-6. Apparently, the problem arises

from the language of the original CAO which states:

In compromise and full settlement of the civil penalties for

violations (specified in the Findings of Fact), the Permittee

agrees to pay to ADPC & E the total sum of One

Thousand Dollars ($1000) as a voluntary civil penalty.

2la

DEFENDANT'S EXHIBIT #7 at 4. Plaintiff does not dispute that the

Corrected CAO covers all violations up to the date of the order, but

points out that Mark Bradley, an Enforcement Engineer in ADPC

& E’s NPDES Enforcement Section, stated in deposition that ADPC

& E had never before corrected a CAO to expand the scope of

covered violations. DEFENDANT'S EXHIBIT #5 at 25-26. However,

defendant points out that Mr. Bradley also stated it was the

department's intent to issue a civil penalty that addressed all past

violations dating back to the beginning of the permit. Jd. at 13, 35-

36. The Court agrees with defendant and finds that the civil

penalty assessed in the original CAO was intended to cover all past

violations.

Furthermore, the three amendments to the CAO have all

assessed civil penalties that purport to cover all violations occurring

up to their respective dates of entry. Therefore, in this Court's

opinion the action commenced and penalties assessed by ADPC &

E do cover all violations of which plaintiff could possibly

complain.

2. "Comparability"

Defendant next argues that the provisions in the Arkansas

Water and Air Pollution Control Act for assessing administrative

penalties are “comparable” to those in 33 U.S.C. § 1319(g).

a. Penalty Provisions

Defendant states that the ADPC & E has been empowered

to seek criminal, civil and administrative penalties against persons

who violate any rules, regulations, orders, permits, or plans issued

pursuant to the AWAPCA. ARK. CODE ANN. § 8-4-103. Also, the

penalty provisions are, according to defendant, generally patterned

after those in 33 U.S.C. § 1319. Sections 8-4-103(c) and (d)

provide that a penalty of $10,000 per day per violation may be

assessed, or in the alternative, the civil penalty may be equal to the

amount of any pecuniary gain the violator derived from

22a

commission of the offenses. 33 U.S.C. § 1319(g)(2)(A) and (B)

also provide for penalties of $10,000 per violation or per day

during which the violation continues.

Plaintiff counters that when the agreement between ADPC

& E and defendant was finalized on April 8, 1991, the maximum

penalty was only $5,000 per violation. Thus, defendant's maximum

penalty for all violations occurring between November of 1988 and

June of 1992 was only $760,000 in contrast to a maximum of

$1,280,000 under federal law. However, as defendant points out,

the $10,000 maximum penalty became effective on April 9, 1991,

and the effective date of the CAO was April 16, 1991.

Defendant also points out that the factors the commission

must consider in determining the amount of an administrative civil

penalty are similar to those in 33 U.S.C. § 1319(g)(3).’ The

. ADPC & E Reg. No. 7, § 9, states that PC & E is required to

consider the following factors:

(a) The seriousness of the noncompliance and its effect upon

the environment, including degree of risk or harm to public health,

caused by the violation.

(b) Whether the cause of the noncompliance was an

unavoidable accident.

(c) The violators cooperativeness and efforts to correct the

violation.

(d) The history of a violator in taking all reasonable steps or

procedures necessary or appropriate to correct any noncompliance.

(e) The violator’s history of previous documented violations

within the last six months regardless of whether or not any

administrative, civil, or criminal proceeding was commenced therefore.

(f) Whether the cause of a violation was an imtentiona! act or

omission on the part of the violator.

(g) Whether the noncompliance has resulted in an economic

benefit to the violator.

(h) Whether the investigation enforcement action has resulted

in unusual or extraordinary costs to the Department or the public.

(i) Whether any part of the noncompliance is attributable to

the action or inaction of the state government itself.

23a

—ii ii

respective factors are indeed similar.

In sum, the penalty and related provisions under Arkansas

law are comparable to those under federal law. The factors in

determining the amount of a civil penalty are similar, and whether

the maximum penalty at relevant times was $5,000 or $10,000

would not alter this Court's determination that the Arkansas penalty

provisions are comparable to the corresponding federal provisions.

b. Notice and Comment

The provisions of the federal statute that provide for public

participation are found in 33 U.S.C. § 1319(g)(4). That section

reads:

(A) Public notice

Before issuing an order assessing a civil penalty

under this subsection the Administrator or Secretary, as the

case may be, shall provide public notice of and reasonable

opportunity to comment on the proposed issuance of such

order.

(B) ‘Presentation of evidence

Any person who comments on a_ proposed

33 U.S.C. § 1319(g)(3) states:

In determining the amount of any penalty assessed under this subsection,

the Administrator or the Secretary, as the case may be, shall take into

account that nature, circumstances, extent and gravity of the violation,

or violations, and with respect to the violator, ability to pay, any prior

history of such violations, the degree of culpability, economic benefit or

savings (if any) resulting from the violation, and such other matters as

justice may require. For purposes of this subsection, 2 single

operational upset which leads to simultaneous violations of more than

one pollutant parameter shall be treated as a single violation.

24a

Sore eee a ees

assessment of a penalty under this subsection shall be

given notice of any hearing held under this subsection and

of the order assessing such penalty. In any hearing held

under this subsection, such person shall have a reasonable

opportunity to be heard and to present evidence.

(C) Rights of interested persons to a hearing

If no hearing is held under paragraph (2) before

issuance of an order assessing a penalty under this

subsection, any person who commented on the proposed

assessment may petition, within 30 days after the issuance

of such order, the Administrator or Secretary, as a case

may be, to set aside such order and to provide a hearing on

the penalty. If the evidence presented by the petitioner in

support of the petition is material and was not considered

in the issuance of the order, the Administrator or Secretary

shall immediately set aside such order and provide a

hearing in accordance with paragraph (2)(A) in the case of

a class I civil penalty and paragraph (2)(B) in the case of

a class II civil penalty. If the Administrator or Secretary

denies a hearing under this subparagraph, the Administrator

or Secretary shall provide to the petitioner, and publish in

the Federal Register, notice of and the reasons for such

denial.

Defendant points out that the provisions pertaining to

hearings before ADPC & E are set forth in §§ 8-4-205, 8-4-210, 8-

4-212, and 8-4-218 to 8-4-221, along with ADPC & E Reg. No. 8,

Part V. Specifically, defendant states that ADPC & E regulations

provide that:

Any person who has submitted comments on an

enforcement matter can request an adjudicatory hearing and

can be made a party to the proceeding conducted by the

Department. ADPC &E Reg. No. 8, Part VII, § 1.

Additionally, “any person” may intervene “at any stage of

25a

the proceeding” if such person timely files a petition to

intervene and, either had a statutory right to initiate the

proceeding, or has an interest which may be adversely

affected by the outcome of the proceeding. Jd., Part VII,

§ 5. By providing this right to intervene, Arkansas law

complies with the applicable federal requirement for public

participation in enforcement proceedings. See 44 C.F.R.

§ 123.27(d)(1).

DEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY

JUDGMENT at 21.

Indeed, 44 C.F.R. § 123.27(d) provides:

Any state administering a program shall provide

for public participation in the State enforcement process by

providing either:

(1) Authority which allows intervention as of

right in any civil or administrative action ... by any citizen

having an interest which is or may be adversely affected;

or

(2) Assurance that the State agency or

enforcement authority will:

(i) Investigate and provide written

responses to all citizen complaints....;

(ii) Not oppose intervention by any

citizen when permissive intervention may be

authorized by statute, rule, or regulation; and

(iii) publish notice of and provide at

least 30 days for public comment on any proposed

settlement of a State enforcement action.

(emphasis added).

26a

It is clear that ADPC & E Reg. No. 8, Part VII, § 5 complies with

§ 123.27(d)(1) in that it allows for intervention as of right if the

petitioner files a timely petition to intervene and either (1) had a

statutory right to initiate the proceeding or (2) has an interest which

is or may be adversely affected by the outcome of the proceeding.

Also, the court in Natural Resources Defense Council, Inc. v. EPA,

859 F.2d 156 (D.C. Cir. 1988), confirmed that § 123.27(d) provides

“meaningful and adequate opportunity for public participation

consistent with the statutory mandate.”

Further, in North and South Rivers Watershed Ass'n v.

Scituate, 949 F.2d 552 (ist Cir. 1991), the court granted summary

judgment under facts almost identical to those at bar. According

to that court, the plaintiff contended that the state law was not

comparable to federal law because it did not create rights of notice

and comment, public participation and rights of appeal identical to

the Federal Act. The court disagreed and stated:

Under the State Act: (1) Administrative Orders are public

documents, see M.G.L. c. 4, § 7; (2) upon showing

adequate cause, any individual may intervene in actions

brought to assess civil penalties, see 310 C.M.R. § 1.01(a),

(f); and (3) any person with an interest in the matter has

the opportunity to file a claim for an individual hearing,

see 310 C.MLR. § 1.01(b). So long as the provisions in the

State Act adequately safeguard the substantive interests of

citizens in enforcement actions, the rights of notice and

public participation found in the State Act are satisfactorily

comparable to those found in the Federal Act.

Id. at 556 n. 7 (emphasis added). Arkansas law provides the same

procedural safeguards as the statute before the Court in Scituate.

Plaintiff cites several cases in support of their argument

that Arkansas does not provide an opportunity for public

27a

participation comparable to federal law.* Although these cases tend

to take a more restrictive view of “comparability,” the Court is

satisfied that the right to public participation under Arkansas law

is sufficiently comparable to § 1319(g), especially in view of 40

C.F.R. § 123.27(d).

¢. Judicial Review

Finally, defendant asserts that the provisions for judicial

review are comparable to those found in 33 U.S.C. § 1319(g)(8).?

According to defendant, an administrative order issued by the

Director of ADPC & E is subject to review by the Commission

upon the filing of a request by a party within 30 days of the order.

ADPC & E Reg. No. 8, Part V, § 7 et seq., and part VIII. Also,

judicial review of any final order can be brought in the state circuit

courts by any person who may be adversely affected thereby. ARK.

CODE ANN. § 8-4-222. Plaintiff did not argue that the judicial

review portions of the Arkansas scheme are not comparable to the

federal scheme.

d. Conclusions as to Comparability

This Court is satisfied that Arkansas law is comparable to

federal law as required by 33 U.S.C. § 1319(g) and is in agreement

Public Interest Research Group of New Jersey, Inc. v. GAF

Corp., 770 F. Supp. 943 (D.N.J. 1991); Atlantic States Legal Foundation v.

Universal Tool & Stamping Co., Inc., 735 F. Supp. 1404 (N.D. Ind. 1990); and

Pennsylvania Environmental Defense Fund v. Mount Pocono Municipal Authority,

Civil No. 90-1208 (M.D. Pa. May 14, 1991).

, 33 U.S.C. § 131% g)(8) provides in pertinent part:

Any person against whom a civil penalty is assessed under this

subsection or who commented on the proposed assessment of such

penalty in accordance with paragraph (4) may obtain review of such

assessment ... by filing a notice of appeal in such court within the 30-

day period beginning on the date the civil penalty order is issued....

28a

.

ee

intemal aii,

5 os tes ~

with the interpretation of comparability given by the First Circuit

in Scituate. If this Court were to follow plaintiffs reasoning, §

1319(g) “would enable citizen's suits to undermine the

supplemental role envisioned for section 505 citizen’s suits,

‘changing the nature of the citizen's role from interstitial to

potentially intrusive.”” Scituate, 949 F.2d at 556 (quoting Gwaltney

of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 61, 108

S. Ct. 376, 383, 98 L.Ed.2d 306 (1987)).

The EPA has noted its disagreement with the decision in

Scituate in a guidance memorandum dated March 5, 1993.

However the Court notes that EPA's position would be similar to

that of plaintiff's in that § 1319(g) would prevent the EPA as well

as a citizen from bringing a contemporaneous enforcement action.

Furthermore, the Court agrees with the reasoning in Scituate that

"i]t is enough ... that the overall scheme of the two acts’® is aimed

at correcting the same violations, thereby achieving the same

goals.” Id.

a Diligent Prosecution

The Supreme Court in Gwaltney of Smithfield v.

Chesapeake Bay Foundation, 484 U.S. 49, 61, 108 S. Ct. 376, 383,

98 L.Ed.2d 306 (1987) took a narrow view of the role of citizen's

suits.

The bar on citizen suits when governmental enforcement

action is under way suggests that the citizen suit is meant

to supplement rather than to supplant governmental action.

The legislative history of the Act reinforces this view of

the role of the citizen suit. The Senate Report noted that

“[t]he 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

” state and federal.

29a

fail to exercise their enforcement responsibility.”

Id., 484 U.S. at 60, 108 S. Ct. at 383 (quoting S. Rep. No. 92-414,

p. 64 (1971), reprinted in 2 A Legislative History of the Water

Pollution Control Act Amendments of 1972 p. 1482 (1973)). Also,

in Connecticut Fund for the Environment v. Contract Plating Co.,

Inc., 631 F. Supp. 1291 (D. Conn. 1986) the court stated that there

is a presumption of diligence “absent persuasive evidence that the

state is currently engaged in a pattern of conduct that could be

considered dilatory, collusive or otherwise in bad faith.” /d. at

1293. And in Scituate, the court was of the opinion that where a

state agency had addressed the concerns of an analogous citizen's

suit, “deference to the agency's plan of attack should be particularly

favored.” Scituate, 949 F.2d at 557. This Court is in agreement

with the general theme of these cases that the state agency must be

given great deference to proceed in a manner it considers in the

best interests of all parties involved.

Defendant states that the April 16, 1991 CAO and the

Corrected CAO require ICI to:

“take whatever corrective action is necessary to eliminate

and prevent recurrence of the effluent violations cited in

the [Order]” and establish a specific schedule of

compliance requiring ICI to report to ADPC & E the

specific corrective actions that are being taken to prevent

recurrence of the non-complaint discharges.

DEFENDANT'S BRIEF IN SUPPORT at 32-33 (quoting, Corrected CAO

at pp. 4-5, 71 1-3). Also, while the CAO has been amended on

several occasions and the compliance schedule has been extended,

defendant argues that this demonstrates that ADPC & E is

providing ongoing supervision and enforcement of the CAO.

Further, defendant asserts that ADPC & E has required ICI to pay

additional administrative penalties for noncompliances occurring

after the original CAO.

On the other hand, plaintiff argues that the relatively small

penalty amounts assessed in the case at bar were arbitrarily set

without consideration of either the economic benefit that defendant

gained from the violations or the seriousness of the violations.

However, as defendant points out, although the amount of the

penalties are substantially less than the maximum allowed by

Statute, they are consistent with the penalties ADPC & E has

required other permit holders to pay. See, DEFENDANT'S EXHIBIT

#24. Also as defendant points out, it had developed a plan which

required a significant capital outlay to correct noncompliances prior

to their initial meeting with ADPC & E. The deposition of Mark

Bradley confirms that ADPC & E considered this an important

factor when determining the penalty. See, DEFENDANT'S EXHIBIT

#5 at 14." Also, ADPC & E Reg. No. 7, § 9, indicates that “[t]he

violators cooperativeness and efforts to correct the violation” are

valid factors in determining the amount of the civil penalty.

Plaintiff also complains that ADPC & E granted two large

extensions of time to comply with the CAO in retum for two $500

penalties. According to plaintiff, the stipulated penalties in the

CAO would have been over $50,000 on the first occurrence and

over $120,000 on the second. Plaintiff cites two cases for its

™ In pertinent part, the deposition reads:

Q. How did you calculate that penalty?

A. It was based upon professional judgment, based

upon their having developed a plan that we weren't even

aware of that they had presented at the meeting, that they

were taking action before we called them into a meeting, and

looked at the number of violations and addressed the $1,000

penalty.

Q. Why did you to with the minimum?

A. Because they had taken action on developing a plan

which was going to involve some capital outlay. It wasnt a

problem that was being ignored. They were already

addressing it, so we decided we'd go with th minimum

penalty.

3la

statement that, “When a state does not demand compliance with its

orders and grants extensions of time, its prosecution is not

diligent.” PLAINTIFF'S BRIEF IN OPPOSITION at 36. Although both

cases involve situations where a state agency allowed numerous

extensions for the permittee to comply, the cases are distinguishable

from the facts at bar.

In Dague v. City of Burlington, 935 F.2d 1343, 1353 (2d

Cir. 1991), the defendant, City of Burlington, failed to install two

systems which were required by the Assurance entered into

between the defendant and the state. The only action taken by the

state to enforce the Assurance was taken after the deadline for

installation had already passed. In addition, the plaintiff had

already filed the lawsuit and the district court had already ordered

the defendant to install the systems. Given this background, the

court stated, “Beyond this one action, the state made no attempt to

ensure compliance with the rest of the Assurance; instead it

allowed the city numerous extensions.”

The second case cited by plaintiff is New York Coastal

Fishermen's Assoc. v. New York City Dep't of Sanitation, 772 F.

Supp. 162 (S.D.N.Y. 1991). There, the court dealt with a situation

in which the defendant and the state entered into a consent order

in 1985 that allowed a deadline for project completion of December

31, 1989. Under that order a temporary plan was to have been

submitted by December 31, 1986. However, after what the court

characterizes as “irrelevant excuses for the delay,” the defendant

submitted the temporary plan in July of 1988. This plan was

rejected and another order was entered into in 1990. Oral

arguments revealed that the new estimated time for project

completion was 1995. The court stated:

This is simply too long to rectify a problem that has been

knows about since 1983.... As defendants themselves

recognize, “citizen suits [can proceed in] those instances

where the federal and state entities are not fulfilling their

enforcement duties.” This is precisely such an instant

32a

:

when the government has not been fulfilling its duties.

Id. at 169 (citations omitted).

The egregious facts found in these two cases are not

present in the case at hand. As defendant points out, the extensions

in this case were based on defendant's requests for additional time

so that more research could be done on the source and possible

remedies of noncompliances that were occurring with zinc. The

evidence shows that the first extension was granted after a meeting

with ADPC & E and a subsequent written request. This request

indicates that almost all of the engineering changes under the

project action plan submitted by defendant and approved under the

CAO were completed prior to the December 31, 1991, deadline and

that defendant had identified all sources of contamination with the

exception of zinc. See, DEFENDANT'S EXHIBIT # 10. In regards to

the second extension, the cover letter on defendant's request for a

construction permit for outfall 004 evidences defendant's intent to

combine the existing outfalls into one new outfall and it's belief

that by doing so it could comply “with each of the permit

parameters, including zinc.” See, DEFENDANT'S EXHIBIT #15.

In sum, the extensions granted in this case were based on

defendant's needs_for additional time to address and correct

problems that existed in the levels of zinc occurring in the outfalls.

Given defendant's level of action during these periods, its apparent

attempts to remedy the problem, and the relatively short periods of

time granted, it was a reasonable course of action for ADPC & E

to grant these extensions.

Plaintiff next points out that ADPC & E waived any further

penalties for future reported zinc violations. In plaintiffs opinion,

“PC & E simply gave defendant a license to pollute.” However,

defendant cites a memorandum in which Randal Oberlag,

ADPC & E Enforcement Engineer/Attorney states that:

The implementation strategy for metals is currently being

33a

developed by the Department based on EPA Rule

promulgation and as a result the Department is unable to

continue with this request. Until the strategy is finalized,

limits on metals for permits and permit modifications

cannot be given. Since ICI’s present permit expires on Oct.

31, 1993, and there is no methodology at present for giving

zinc limits, the Amendment extending monitoring and

reporting conditions through Oct. 31, 1993 and requiring

“report only” for zinc was appropriate. The facility agreed

to be bound by the remaining limits of the “3 terminated

outfalls” for Outfall 004.

See, DEFENDANT'S EXHIBIT #2 (attached to Defendant's Response

to Plaintiff’s Amended Motion (# 63)). Apparently, ADPC & E is

currently developing its strategy for setting limits on discharge of

metals such as zinc.

In the Court's opinion, defendant has demonstrated that

ADPC & Eis diligently prosecuting its enforcement action against

defendant. What plaintiff characterizes as arbitrary decisions on the

part of ADPC & E appear to the Court as reasoned cooperative

efforts to remedy noncompliances with the permit. Under the

circumstances described above, this Court is of the opinion ADPC

& E's efforts to remedy the permit violations must be characterized

as diligent prosecution. It cannot be said that ADPC & E has

failed “to exercise [its] enforcement responsibility.” Gwalmey, 484

U.S. at 61.

B. Section 1319(g)(6)(A)(iii)

Given this Court's opinion on the applicability of §

1319(g)(6)(A)(ii), it is wummecessary to address defendant's

arguments that § 1319(g)(6)(A)(iii) also preclude plaintiff from

bringing the present action.

Ii. 33 U.S.C. § 1319(g)(6)(B)

Defendant next argues that neither of the two exceptions

contained in § 1319(g)(6)(B) are applicable to this case. That

section reads:

The limitations contained in subparagraph (A) on

civil penalty actions under section 1365 of this title shall

not apply with respect to any violation for which --

(i) a civil action under section

1965(a)(1) of this title has been filed prior to

commencement of an action under this subsection,

or

(ii) notice of an alleged violation of

section 1365(a)(1) of this title has been given in

accordance with section 1365(b)(1)(A) of this title

prior to commencement of an action under this

subsection and an action under section 1365(a)(1)

of this title with respect to such alleged violation

is filed before the 120th day after the date on

which such notice is given.

Plaintiff argues only that subsection (ii) is applicable.

According to plaintiff, if the April, 1991, CAO constitutes (and this

Court has held that it does) the commencement of an action, the

Corrected CAO and the amendments thereto must also constitute

the commencement of new enforcement actions that did not begin

before it gave notice of its intention to file suit. The Court

disagrees. The Corrected CAO and the amendments thereto

represent an ongoing enforcement action on ADPC & E's behalf.

To adopt plaintiff's broad interpretation would hamper ADPC & E's

ability to conduct ongoing negotiations with permit holders outside

the realms of the filing an actual adversary lawsuit. To the

contrary, defendant and ADPC & E have been able to cooperate

and avoid such a suit, and the Court cannot accept plaintiffs

interpretation.

35a

IV. THE SCOPE OF 33 U.S.C. § 1319(g)(6)

Plaintiff argues that § 1319(g)(6) bars only actions seeking

civil penalties and not actions for injunctive relief. See, New York

Coastal Fishermen's Ass'n v. New York City Dep't of Sanitation,

772 F. Supp. 162, 169 (S.D.N.Y 1991), and PIRG v. Witco

Chemical Corp., 31 ERC 1571, 1576, 1990 WL 66178 (D.N.J.

1990). However, the F:rst Circuit in Scituate reached a contrary

conclusion. In response to the plaintiff's argument that the literal

language of § 1319(g)(6) speaks only of civil penalties and that the

ban on citizen suits only extends to penalty actions, the court

stated:

Even if the literal reading of section [1319] does lead to

such a result, that result would lead to deferring to the

primary enforcement responsibility of the government only

where a penalty is sought in a civilian action, as if the

policy considerations limiting civilian suits were only

applicable within the context. Such a result would not

only be undesirable, see Gwaltney 484 U.S. at 60-61, 108

S. Ct. at 383-384, it would be absurd.

Scituate, 949 F.2d at 558. This Court is in agreement that the

policy considerations which prevent plaintiff from bringing a

contemporaneous civil penalty action also must preclude plaintiff's

injunctive and declaratory requests. Until it is shown that ADPC

& E is not diligently pursuing their enforcement action against

defendant, its efforts to remedy the situation should not be

hampered by contemporaneous citizen suits.

. CONCLUSION

In sum, the Court is of the opinion that ADPC & E is

diligently prosecuting an enforcement action under the state law

that is comparable to federal law and that plaintiffs complaint

should be dismissed in its entirety. Any remaining motions in this —

matter are moot.

36a

IT IS SO ORDERED this 8th day of April, 1993.

s/ Stephen M. Reasoner

United States District Judge

37a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

7 WESTERN DIVISION

ARKANSAS WILDLIFE FEDERATION PLAINTIFF

VS No. LR-C-91-681

ICI AMERICAS, INC. DEFENDANT

BSBRARARARRARARRAARAARRARRAERRARAEEAR Ae SS

DISCOVERY DEPOSITION OF MARK BRADLEY

(Taken June 17, 1992)

#2 eReeeeeAQeaeee ReaenraRreeenvweewrenreseense

[Excerpts]

xk

[page 4]

BY MR. LEDBETTER:

Q: State your name for the record, please.

It's Mark Bradley.

Mark, where are you employed?

> QO &

Arkansas Department of Pollution Control & Ecology.

38a

Q: What was your period of employment the first time with

Arkansas Department of Pollution Control & Ecology?

A: From August 1990 until September 1991.

Q: What were your duties with PC&E during that period of

time?

[page 7]

A: The first two months that I was here -- I guess actually just

the first month, about a month-and-a-half -- I was with NPDES

permits. I was a permit writer. Then from October of ‘90 until I

left the agency, I was with enforcement, NPDES enforcement.

x**e

[page 8]

Q: I want to hand you a document and see if you can identify

that.

A: (Reviewed document.) Yes, this was the letter that I sent

out to set up the meeting for potential enforcement action.

Q: Why did you send that letter to ICI?

A: Well, in reviewing the files, they had had some problems

with zinc violations, COD, and a couple of times with total

suspended solids. And we set up a meeting to discuss the

violations, to see what they were doing, if anything, to correct them

and what corrective action, if any, we needed to take.

xx

[page 9]

39a

Q: Did you meet with representatives of ICI on March Sth?

A: Yes.

0: Tell me about that meeting. Who was present?

A: It was Hayes Baber and Irvin Wheeler, and Joe Williford

was also present, who is my supervisor. And what we discussed

were the 30 violations and to see what action, if any, they had

[page 10}

taken because of those violations. * * *

[page 13]

Q: Okay. And what was the penalty that was proposed?

[page 14]

A: $1,000.

Q: How did you calculate that penalty?

A: It was based on professional judgment, based upon their

having developed a plan that we weren't even aware of that they

had presented at the meeting, that they were taking action before

we called them into a meeting, and looked at the number of

violations and addressed the $1,000 penalty.

Q: For 30 violations of a permit, how do you -- I mean, what

factors are used in calculating? Did you prepare a document that

reflects how you decided the penalty should be calculated? I mean,

was there a dollar value per violation? Was it higher for COD and

lower for zinc? How did you calculate this?

A: A $1,000 penalty was the minimum penalty typically that

40a

we would look at, so we went with that penalty.

Q: Why did you go with the minimum?

A: Because they had taken action on developing a plan which

was going to involve some capital outlay. It wasn’t a problem that

was being ignored. They were already addressing it, so we decided

we'd go with the minimum penalty.

em

[page 15]

Q: Are you familiar with the concept of economic benefit for

non-compliance?

A: Yes.

Q: Are you aware of EPA - the Environmental Protection

Agency's methods of calculating economic benefit?

A: Yes.

Q: Have you, yourself, been involved in calculating economic

benefit for non-compliance?

A: I have not.

Q: Who does that here?

A: As I understand it, it's now being done by the enforcement

(page 16)

engineers through the enforcement section.

Q: But when you were an enforcement engineer, you weren't

4la

familiar with how to do that?

A: Correct.

Q: That wasn’t being used at the time?

A: At that time we were not using it.

Q: So in this case, you did not calculate an economic benefit

for ICI?

A: I did not.

Q: And did you request any information that would allow you

to calculate an economic benefit for ICI?

A: No.

Q: Do you have any idea what their economic benefit was as

a result of this non-compliance? :

A: I don't.

42a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ARKANSAS WILDLIFE FEDERATION PLAINTIFF

VS No. LR-C-91-681

ICI AMERICAS, INC. DEFENDANT

*#RA2AAARAAAAERAAAARAARKAAARARAARAAA SR

DISCOVERY DEPOSITION OF R. HAYES BABER

(Taken June 16, 1992)

*£*¢ 2792 282 S22 e2eeeaneenaeaezeena ee eaeaeneeeaewees

[Excerpts]

kk t

[page 4]

BY MR. LEDBETTER:

Q: State your name, please.

First initial “R,” middle name Hayes, last name Baber.

Mr. Baber, where are you employed?

> QO F

ICI Americas, Incorporated, North Little Rock.

43a

What is your present position?

Quality control supervisor.

What does that entail, what duties?

zr O F

It entails quality control, quality assurance of finished

products and raw materials, environmental coordination of air and

water, and partial responsibility for industrial hygiene.

2 2

[page 48]

Q: All right. So let's talk about the March Sth meeting. Who

attended?

A: Irvin Wheeler, myself, Mark Bradley, and Joe Williford.

22 @

[page 54]

Q: Did the company’s ability to pay a fine -- was that ever a

topic that came up?

A: No.

Q: What about any economic benefit that the company may

have received as a result of the non-compliance or the delay in

compliance? Was that ever discussed?

A: No.

[page 111)

er et Ree eae

How many $500 fines have you paid?

Two that I know of.

So that’s an extra thousand from the original thousand?

Uh-huh.

Who proposed the fine?

ADPC&E.

Who at ADPC&E?

I'm assuming Randy Oberlag.

How did he calculate that fine; do you know?

I have no knowledge of that.

Did he request any information from the company that

you're aware of to utilize in calculating the fine or the penalty?

A:

No.

45a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ARKANSAS WILDLIFE FEDERATION

Plaintiff,

ICI AMERICAS, INC.

)

)

)

V. ) No. LR-C-91-681

)

“a

Defendant. )

)

AFFIDAVIT OF STEVE A. WEAVER

STATE OF ARKANSAS )

) SS.

COUNTY OF PULASKI )

I, Steve A. Weaver, do hereby depose and state:

1. I am the Chief Legal Counsel for the Arkansas

Department of Pollution Control & Ecology ("PC&E” or “the

Department”). I have been Chief Legal Counsel since October,

1988. I have been employed at PC&E since 1987. I have personal

knowledge of the matters set forth herein.

xk

5. Most enforcement actions taken by the Department are

resolved through entry of a Consent Administrative Order (“CAO”).

Generally, this entails the Department, through informal

correspondence, notifying the alleged violator of the Department's

grounds for enforcement action, proposing a compliance schedule,

and often a civil penalty as well. If the alleged violator agrees to

46a

the Department's proposed resolution, a CAO is entered, effective

upon the date of its signing by the Director. No notice is given to

the public of the proposed CAO, nor is there a public comment

period, either before or after the entry of the CAO.

22

Pursuant to 28 U.S.C. § 1746, I declare under penalty of

perjury that the foregoing is true and correct. Executed on

September 8th, 1992.

s/ Steve A. Weaver

Steve A. Weaver

47a