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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1147

## Text

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

EP ee

— tii! P
= rien a — at

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

eos 9 y > i
po iii
ee ee ee ee |
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
er ee a la
EE ES a ee ee 16a
EE I ee ee 17a
EE eee ee ee 38a
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
es Oe ee ie ee Se a sk ee oe be ea hee 1
Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq.
ag. os ks op 6 oe 06.88 oP Oe 6
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
pS ee ee 8
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
ee rs a ae 5 ves oe eee ee ee ee 6
i aes ee miele eos 6
RN os oe edi Ge ee es 6
ee ED: as oko K's 6 Rue ewe ed eee 4

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0786%3A1. Public record. Not legal advice.