Opposition Brief — Arkansas Wildlife Federation v. ICI Americas, Inc.

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No. 94-841

OHNE RR OCLC a ATT TTR ATEN 35 SENSE E RSS

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

ARKANSAS WILDLIFE FEDERATION,

Petitioner,

IC] AMERICAS INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

JAMES F. GOODHART

BANKS, DODSON,

GOODHART & SPADES

425 West Capitol Avenue

Suite 1590

Little Rock, Arkansas 72201

(501) 375-8700

Counsel for Respondent.

San

Wererqer OC + THIEL PRESS + (202) 328-3786

(1)

QUESTIONS PRESENTED

1. Whether Section 33 U.S.C. §1319(g)(6)(A) of the

Clean Water Act bars plaintiff’s citizen suit brought

under that Act where the state had previously com-

menced and was diligently prosecuting an administrative

enforcement action against the defendant for the same

alleged violations under a comparable state law, and the

plaintiff had actual notice of, and an opportunity to

intervene in, the state action before initiating the citizen

suit?

2. Whether the preclusive effect of 33 U.S.C. §1319-

(g)(6)(A) extends to plaintiff’s claims for declaratory

and injunctive relief, as well as plaintiff’s claim for civil

penalties?

(it)

LIST OF PARTIES

The parties to the proceeding are Petitioner, Arkansas

Wildlife Federation, and Respondent, ICI Americas Inc.

(now known as ZENECA Inc.).*

*ZENECA Inc. became the legal successor to ICI Americas

Inc. on January 1, 1993. The parent companies of ZENECA Inc.

are: ZENECA Group PLC; ZENECA Limited; and ZENECA Hold-

ings, Inc. Subsidiaries of ZENECA Inc. which are non-wholly

owned are: Corpus Christi Global Chemicals Company; Garst

Research Farms, Inc.; and Image Polymers Company.

(itt)

Page

TABLE OF CONTENTS

a re i

es ied d's bo os wk ke Oe 8 ew 8 ii

ye EN a re iii

STATEMENT OF THE CASE ........--. +2 e esse eeeees 2

SUMMARY_OF THE ARGUMENT................00-. 9

Se eee eR 10

I. The Eighth Circuit’s Decision Does Not Conflict

With Applicable Decisions Of This Court............ 10

II. The Eighth Circuit’s Decision Does Not Conflict

With A Decision Of Any Other Court of Appeals....... 22

RE re a re 27

APPENDICES:

Appendix A — Excerpts from Discovery Deposition of

CG la

Appendix B — Letter of Randal K. Oberlag, dated

tebruary 8, 1992, and ADPC&E Memorandum

Ro OR UR a re .7a

Appendix C — Affidavit of Steve A. Weaver, dated

EO LE a 13a -

TABLE OF AUTHORITIES

Cases:

Arkansas Wildlife Federation v. ICI Americas Inc., 842

F. Supp. 1140 (E.D. Ark. 1993), aff’d, 29 F.3d

ee a ee passim

Atlantic States Legal Found., Inc. v. Universal Tool

Stamping Co., Inc., 735 F. Supp. 1404 (N.D.

ae APS ae 26

Connecticut Coastal Fishermen’s Ass’n v. Remington

Arms Co., Inc., 777 F. Supp. 173 (D. Conn. 1991),

ay @, DES F.26 1506 (26 Cir. 1998)... ec ccc wccees 19

(wv)

Cases, continued: Page

Crandon v. United States, 494 U.S. 152, 110 S.Ct.

ee fe ee eee 10

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,

Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306

CR 6k Sa ea ele reece ee ween ea 17-20, 22, 26

Haggar Co. v. Helvering, 308 U.S. 389, 60 S.Ct. 337,

eR See re re eee are 10

King v. St. Vincent’s Hosp., 502 U.S. __, 112 S.Ct.

>, eo Rg Ee: | eae 10

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

era te ee ere Sa ee ee eee ee 26

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

Scituate, 949 F.2d 552 (1st Cir. 1991) .......... 21, 23-25

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

OP ee wn oe ee ee ee eee ee eee Tee 26

Public Citizen v. United States Dep’t of Justice, 491

U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 77

MIRO UR AO Pa er er ar ee ee eee 10

Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95

Rene GNU 6 os 5.6% 000s wd a0 be 8 oe 40 Re eS OO 20

United States v. Heirs of Boisdore, 49 U.S. (8 How.)

Ses Oe ee SN he nee ee ee ee eee wee 10

United States Nat. Bank of Oregon v. Independent

Ins. Agents of America, Inc., ___ U.S. —__.,

113 S.Ct. 2173, 124 L.Ed.2d 402 (1993)........... 10, 18

Washington PIRG v. Pendleton Woolen Mills, Inc., 11

re a ee eee 25-26

Statutes and Regulations:

Arkansas Water and Air Pollution Control Act, Ark.

Code Ann. §8-4-101, et seq.

A ee I ake vee eek ke as ese een 3

Sh, Se As Is ee oe 8 he eee aa eee eee 4 17

Pe es Is Fh cb cd cere eeeswese eases 17

(v)

Statutes and Regulations, continued: _Page

Peat. Gee a, I kk cc cect caw wnatees 15

Ark. Code Ann. §8-4-207(6)..............eeee cece 15

Ae. Ge A Es 6 on ect hee eee ede ewemes 15

Ark. Code Ann. §8-4-211........... signe ee ee 17

Pal, GO TR, BIOs a 6 voc cece sa cainwweens 15

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

io ec ch vader kee 23

SB Ee UIEE, occ cbc vce cenecccaceueuwes 18

4 0 EST ECCTE TT Cee ee ee passim

Pe IES ko 6-40 06s cee seencesan ean 11, 19, 25

| PPP CP SCTE 19-20

Sf ddd SCRE eee ee ee 20-21

ES Fe kv eect inc eawe conv estes passim

33 U.S.C. $1319(g)(2)(A). .. eee ee eee eee 16

33 U.S.C. §1319(g)(3).. 0.0.0... cee eee eee eee 11-12

33 U.S.C. §1319(g)(4)... 0.0.00 cee eee eee ee ee 16, 18

33 U.S.C. §1319(g)(4)(A)..........-0000- oe. 14,24

$3 U.S.C. $1919(g)(4)(C).... 0.2.22... cc ee ee ceee 16

33 U.S.C. §1319(g)(6).........-.0 ee eee. 10, 19, 21, 26

33 U.S.C. §1319(g)(6)(A)..........022000. 14, 18, 21-24

S5 UGG, BIMIAID goo occ cc caccccccanee 25

SS U.G.C. BIBTRPUAIE. 5 occ ccc ccc ccccs passim

33 U.S.C. §1319(g)(6)(A)(iii) ........... 0c eee 7,14

$3 U.S.C. § 1819(g)(6)(B)(ii).... 0-0-2 eee eee eee 9

re Re 21

96 MI, going oc ccc cnc cacesccsececaes 2,15

gg Ob os a srk. 0:0 6:0 oe eee 18-19, 21

ES ee re . 19-20

wt nr 19-20

ee rr ae 15

ADPC&E Regulation No. 8, Part V, §7(a)............... 15

ADPC&KE Regulation No. 8, Part VI, §1 ................ 15

ADPC&E Regulation No. 8, Part VII, §1................ 15

ADPC&E Regulation No. 8, Part VII, §§2,3............. 11

ADPC&E Regulation No. 8, Part VII, §5(a)............ 15-16

(vt)

Page

Legislative Materials:

133 Cong. Rec. S737 (daily ed. Jan. 14,1987) ......... 14, 21

eS SO cd | ee nr eer ere ere ee 19

S. Rep. No. 50, 99th Cong., Ist Sess. 27 (1985) ........... 14

No. 94-841

IN THE

SUPREME COURT OF THE UNITED STATES :

OCTOBER TERM, 1994

ARKANSAS WILDLIFE FEDERATION,

Petitioner,

VU.

ICI AMERICAS INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Respondent ICI Americas Inc. (“ICI”) respectfully

requests that the Court deny the Petition for a Writ of

Certiorari submitted by Petitioner, Arkansas Wildlife

Federation (““AWF’’).

2

STATEMENT OF THE CASE

ICI is dissatisfied with the statement of the case sub-

mitted by AWF and submits this restatement containing

additions and corrections.

ICI operates a facility in North Little Rock, Arkansas

that formulates liquid and granular herbicides for agricul-

tural usage. On September 30, 1988, the Arkansas Depart-

ment of Pollution Control and Ecology (““ADPC&E”’)

issued a stormwater discharge permit to ICI under the

state-administered National Pollutant Discharge Elim-

ination System (“NPDES”) permit program.! The

permit was made effective from November 1, 1988

through October 31, 1993, and authorizes ICI to dis-

charge stormwater runoff? through three point sources

on its property (outfalls 001, 002, and 003) subject to

specific conditions, including a requirement that ICI

periodically monitor the discharge and report the results

to ADPC&E in order to demonstrate that the concen-

trations of various pollutants do not exceed limits set

by ADPC&E pursuant to federal and state NPDES

regulations. The permit allows ICI to discharge the

stormwater into an underground stormdrain owned

by the City of North Little Rock, where it mixes with

other stormwater and then travels several miles through

1 Pursuant to 33 U.S.C. §1342, the United States Environ-

mental Protection Agency (‘‘EPA’’) has delegated authority to

the State of Arkansas to issue NPDES permits. See 51 Fed. Reg.

44518 (Dec. 10, 1986).

2ICI’s facility produces no industrial process wastewater in

its formulation operations; the only effluent that ICI discharges

under its permit is rain which contacts the facility and surround-

ing property. The facility was among the first in Arkansas to be

regulated under an NPDES permit solely for stormwater discharge.

eee

3 -_

a series of ditches and canals before ultimately reaching

the Arkansas River.

Between December, 1988 and February, 1991, ICI

reported to ADPC&E various instances of noncompli-

ance with the effluent limitations in its permit. In response

to those reports, ADPC&E sent various notices informing

ICI that the noncompliances were permit violations

subject to enforcement action under the Arkansas Water

and Air Pollution Control Act (“AWAPCA”), Ark. Code

Ann. §8-4-101 et seg., and requesting that ICI take all

reasonable measures necessary to prevent recurrence of

those violations.

By letter dated February 15, 1991, ADPC&E notified

ICI that it was “‘subject to enforcement action under the

Arkansas Water and Air Pollution Control [Act]” due

to the continuing violations of its NPDES permit and

requested a meeting to discuss the enforcement action.

During the course of that meeting, which was held on

March 5, 1991, ICI employees presented to ADPC&E

enforcement personnel.a copy of a multi-step compli-

ance action plan that the company had begun implement-

ing in the fall of 1990. The compliance plan included

substantial engineering modifications and other meas-

ures expected to cost the company almost $500,000.

After evaluating the compliance action plan, ADPC&E

prepared a Consent Administrative Order (“CAO”) in

settlement of the enforcement action. ADPC&E agreed

that the CAO, when written, would address all previous

violations under ICI’s permit and would require the com-

pany to pay a civil penalty of $1,000, and complete

implementation of the measures in the compliance action

plan by December 31, 1991. The CAO was subsequently

executed and became effective on April 16, 1991—six

months before AWF filed its complaint in this case.

4

After the CAO was executed, ICI realized that the

order failed to expressly state that the settlement had

covered all prior violations under ICI’s permit and,

instead, had listed only the thirty most recent non-

compliances. When ICI brought this to ADPC&E’s

attention, the Department revised the CAO to accurately

list each noncompliance dating from November 1988

to conform to the parties’ original intent. The CAO,

which remained the same in all other respects, was then

reissued on September 9, 1991, as a “Corrected Consent

Administrative Order’’ (“Corrected CAO”’).

The CAO, both as originally issued and as corrected,

provided that ICI would be required to pay additional

civil penalties in the event ICI failed to comply with

the effluent limits, deadlines, or other requirements

set forth in the order. Furthermore, the CAO expressly

left open the possibility of further remedies or sanctions

by ADPC&E.

By the end of 1991, ICI had completed all of the

engineering changes outlined in its compliance action

plan, with the exception of removal of certain equip-

ment, which was completed in January 1992. However,

on December 26, 1991, ICI requested that ADPC&E

extend the corm;!iance deadline unde: the CAO until

April 30, 1992, :» allow ICI additiona: time to investi-

gate sources of zinc contamination in its stormwater and

implement any necessary corrective measures. Finding

the request reasonable, ADPC&E issued an ainendment

to the Corrected CAO granting the exteision; how-

ever, the Departnient also required in the amendment

that ICI pay an additional $500 administrative penalty

for various noncompliances after the date of the Cor-

rected CAO.

eh |

5

On March 13, 1992, ICI requested from ADPC&E

authorization to install additional piping for its storm-

water drainage system in order to combine the existing

outfalls (001, 002, and 003) into one main outfall (004)

which would discharge stormwater from a single point

source. ICI represented to ADPC&E that this modifica-

tion would enable ICI to demonstrate compliance with all

of its NPDES permit limits, including limits for zinc.

ADPC&E approved ICI’s request and issued a construc-

tion permit authorizing the modifications. Thereafter,

on April 30, 1992, the Department issued a second

amendment to the Corrected CAO to allow ICI until

December 15, 1992, to come into full compliance with

the conditions of its NPDES permit. This second amend-

ment required ICI to, among other things, complete

construction of Outfall 004 by July 31, 1992 and submit

an application by June 15, 1992 to establish effluent

limits for the new outfall; provide sampling results for

Outfall 004 in addition to all three original point sources;

and pay an additional $500 civil penalty. The amend-

ment also extended to December 15, 1992 the date for

full compliance with NPDES permit conditions, and fur-

ther provided that as long as ICI remained in compliance

with all other terms of the Corrected CAO, as amended,

the company would not be assessed any additional pen-

alties for the presence of zinc in its discharge. ADPC&E

enforcement personnel anticipated that a new permit for

Outfall 004 would be issued prior to December 15, 1992.

ICI completed construction and submitted its permit

application for Outfall 004 within the deadlines specified

in the second amendment. However, rather than issuing a

new NPDES permit,” ADPC&E issued a third amendment

3 ADPC&E was unable to issue ICI’s permit for Outfall 004

at that time because the Department had not yet developed a

methodology to impiement new effluent limits for metals, includ-

[footnote continued]

‘a

6

to the Corrected CAO, which provided that, effective

December 15, 1992 and continuing until October 31,

1993 (the expiration date of ICI’s permit), the sampling

and reporting requirements for Outfalls 001, 002 and 003

were terminated. The amendment substituted Outfall

004 as the relevant discharge location for monitoring

and reporting purposes, and made the discharge limita-

tions for that outfall the same as those specified in

the permit for the former main outfall, except a “report

only” requirement was continued with respect to zinc.

This third amendment also stated that there had been

no violations since the previous amendment but, never-

theless, required ICI to pay a civil penalty of $500

“in compromise and full settlement of any claims for

civil penalties, in particular, claims . . . for costs and

expenses incurred by ADPC&E.”’

In the meantime, in May, 1991 AWF learned of

ADPC&E’s enforcement action against ICI and received

actual notice of the original CAO.* Thereafter, by letter

dated July 2, 1991, AWF notified ICI that AWF intended

to file this citizen suit under the Clean Water Act. In

response to the notice letter, ICI informed AWF that

ADPC&E already had been prosecuting an enforcement

action against ICI for the same permit violations alleged

by AWF, and also outlined the measures which the com-

pany had been implementing under the compliance

ow

ing zinc, which EPA was in the process of establishing. See 57

Fed. Reg. 60848 (Dec. 22, 1992); App. 10a-1la.

*AWF has admitted that on May 21 or 22, 1991, its attor-

neys reviewed the NPDES permit files for ICI, including the CAO,

while at ADPC&E’s offices. All records, reports and other docu-

ments related to NPDES permits, including enforcement orders,

are public documents available for inspection and copying by the

general public at ADPC&E’s offices during regular business hours.

App. 13a-14a.

7

action plan. AWF subsequently received notice of the

Corrected CAO on September 11, 1991—two days after

the order was entered. Nevertheless, on Ociuber 15,

1991, AWF filed its complaint alleging that ICI had

been in violation of its NPDES permit and seeking civil

penalties, declaratory and injunctive relief, and litigation

costs, including attorney’s fees. AWF later received

timely notice of each of the three amendments to the

Corrected CAO. Although under the Department’s regu-

lations AWF was entitled to intervene in opposition to

these orders and request an adjudicatory hearing, at no

time did AWF attempt to intervene or otherwise partici-

pate in the ADPC&E enforcement action against ICI.

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

complaint on the grounds that the action was jurisdic-

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

(iii). The district court denied ICI’s motion without

prejudice and allowed limited discovery. On July 22,

1992, ICI filed a motion for summary judgment seeking

dismissal of the complaint, again on the grounds that

jurisdiction was barred under 33 U.S.C. §1319(g)(6)

(A)(ii) and (iii), AWF opposed the motion and filed

cross-motions for partial summary judgment and for

injunctive relief.

In a final order dated April 8, 1993, the district

court granted ICI’s motion for summary judgment, dis-

missed AWF’s cross-motions as moot, and dismissed

AWF’s complaint. The district court held that AWF’s

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

§ 1319(g)(6)(A)(ii) since ADPC&E had commenced

and was diligently prosecuting a prior enforcement

action against ICI under state law comparable to Sec-

tion 1319(g) for the same violations alleged in AWF’s

complaint. Arkansas Wildlife Federation v. ICI Americas

8

Inc., 842 F. Supp. 1140, 1144-50 (E.D. Ark. 1993). The

court also held that the jurisdictional bar applied not

only to AWF’s civil penalty claim for past violations,

but also to its requests for declaratory and injunctive

relief. Jd. at 1150.

AWF appealed the district court’s decision to the

Eighth Circuit. In an unanimous decision, the court of

appeals affirmed the district court and held that the

criteria in 33 U.S.C. §1319(g)(6)(A)(ii) were met under

the facts in the case, thus barring AWF’s action. Arkansas

Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376,

379-82 (8th Cir. 1994). In rejecting AWF’s principal

argument that ADPC&E’s administrative enforcement

process was not “comparable” to administrative enforce-

ment by the federal government under 33 U.S.C.

§ 1319(g), the court of appeals explained as follows:

[T]he comparability requirement may be satis-

fied 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 signifi-

cant stages of the decision-making process, and ade-

quately safeguards their legitimate substantive

interests. [citation omitted].

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 par-

ticipate 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 inter-

vened in the administrative process but instead

9

chose to collaterally attack the enforcement action

through this federal lawsuit. We have no reason to

believe that AWF would have been denied meaning-

ful participation in the administrative process had it

intervened. We therefore hold that the Arkansas

statute is “comparable” to 33 U.S.C. §1319(g) for

purposes of applying 33 U.S.C. §1319(g)(6)(A)(ii)

to the present case.

29 F.3d at 381-82 (footnote omitted).

The court also held that because the original CAO,

and the corrected and amended CAOs, had been part of

a single, ongoing enforcement action by ADPC&E, the

exception to jurisdictional preclusion set forth in 33

U.S.C. §1319(g)(6)(B)(ii) did not apply. Jd, at 382.

The court further held that the jurisdictional bar covered

AWF’s claims for declaratory and injunctive relief, as well

as for civil penalties. Jd. at 382-83.

SUMMARY OF THE ARGUMENT

The court of appeals has not decided a federal question

in this. case in a way that conflicts with applicable deci-

sions of this Court. Nor has the Eighth Circuit rendered

a decision in conflict with a decision of another circuit.

In affirming the district court’s order dismissing Petition-

er’s action, the court of appeals correctly applied the pro-

visions of 33 U.S.C. §1319(g) to the facts of the case in

a manner fully consistent with the language of Section

1319(g), the legislative purposes underlying that provi-

sion, as well as the legislative purposes of the Clean Water

Act’s citizen suit provision.

iy

10

ARGUMENT

I.

THE EIGHTH CIRCUIT’S DECISION DOES NOT CON.

FLICT WITH APPLICABLE DECISIONS OF THIS COURT.

In applying the provisions of 33 U.S.C. §1319(g)(6)

to the facts in the present case, the Eighth Circuit did

not depart from Supreme Court precedent concerning

interpretation of federal statutes.

AWF’s argument that the court of appeals’ decision

contradicts this Court’s decisions regarding proper statu-

tory construction brushes aside the fundamental rule that

“ta statute is to be read as a whole, ... since the meaning

of statutory language, plain or not, depends on context.”

King v. St. Vincent’s Hosp., 502 U.S. ___ , 112 S.Ct. 570,

574, 116 L.Ed.2d 578 (1991). This Court has stressed

over and over that “[i]n expounding a statute, we must

not be guided by a single sentence or a member of a sen-

tence, but look to the provisions of the whole law, and to

its object and policy.” United States Nat. Bank of

Oregon v. Independent Ins. Agents of America, Inc.,

— US. —— , 113 S.Ct. 2173, 2182, 124 L.Ed. 402

(1993) (quoting United States v. Heirs of Botsdore, 49

U.S. (8 How.) 113, 122 12 L.Ed. 1009 (1849)); see also

Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct.

997, 1001, 108 L.Ed.2d 12 (1990). Additionally, a

literal reading of a statute which would lead to an

“absurd” or “odd” result is to be avoided when the

statute can be given a reasonable application consistent

with its words and legislative purpose. Public Citizen v.

United States Dep’t of Justice, 491 U.S. 440, 454, 180

S.Ct. 2558, 2567, 105 L.Ed.2d (1989); Haggar Co. v.

Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 339, 84

L.Ed. 340 (1940).

11

The Eighth Circuit’s construction and application of

the statute in this case is true to the foregoing principles.

In holding that 33 U.S.C. §1319(g)(6)(A)(ii) barred

AWF’s action, the court of appeals applied the provision’s

key terms in accordance with the ordinary meaning of

those terms, and consistent with the object of the statute

and the Clean Water Act as a whole.

1. More specifically, the court of appeals agreed with

the district court’s holding that ADPC&E “commenced”

an administrative action when it issued the original CAO.

29 F.3d at 379-80. Both courts were correct on this

point given that ADPC&E’s issuance of an administrative

order by consent constitutes initiation of a formal adjud-

icatory proceeding before that agency. ADPC&E Regula-

tion No. 8, Part VII, § §2, 3.

The Eighth Circuit also agreed with the district court

that the facts demonstrated ADPC&E was “diligently

prosecuting” its administrative enforcement action

against ICI within the meaning of Section 1319(g)(6)(A)

(ii). 29 F.3d at 380-81. Contrary to AWF, “diligence” in

prosecuting an administrative enforcement action should

not be measured solely upon the agency’s consideration

of the penalty factors set forth in Section 1319(g)(3).

While a state agency’s consideration of factors such as

those is relevant to determining whether the agency has

acted diligently, it is also important to examine whether

the agency has exercised other aspects of its enforcement

authority in order to carry out its enforcement responsi-

bilities (e.g., issue orders similar to those issued by EPA

under Section 1319(a) to force compliance with the law).

The Eighth Circuit’s finding that ADPC&E acted dili-

gently in prosecuting its enforcement action against ICI

is most amply supported by the record. As the district

court recognized, ADPC&E entered orders requiring ICI

12

to “take whatever corrective action [was] necessary to

eliminate and prevent recurrence of the effluent viola-

tions cited in the [orders]”’ and to report on the comple-

tion of the requisite corrective actions within specific

deadlines. 842 F.Supp. at 1148. ADPC&E’s orders also

expressly left open the possibility of additional future

remedies or sanctions by the Department. /d. at 1142.

After execution of the original CAO, ADPC&E maintained

ongoing supervisions over ICI’s compliance efforts. The

company implemented a comprehensive remedial action

plan at a cost of more than half a million dollars, which

resulted in the company achieving full compliance with

the CAO and the applicable limitations of its NPDES

permit. See 29 F.3d at 380. Based upon ICI’s efforts,

and the relatively short time periods involved, the district

court found that ADPC&E acted reasonably in extending

compliance deadlines. Jd. at 1149. The district court

further noted that:

What [AWF] characterizes as arbitrary decisions on

the part of ADPC&E appear to the Court as rea-

soned cooperative efforts to remedy noncompli-

ances with the permit. Under the circumstances

..., this Court is of the opinion ADPC&E’s efforts

to remedy the permit violations must be character-

ized as diligent prosecution.

842 F.Supp. at 1149 (emphasis added).

Equally misplaced is AWF’s challenge to the adequacy

of the penalty amount imposed by ADPC&E. In assess-

ing civil penalties against ICI, ADPC&E considered

factors very similar to those in Section 1319(g)(3).

842 F.Supp. at 1145, 1148. ADPC&E’s determination

of the penalty amount was based on professional judg-

ment and tc ‘: into account the history an seriousness

of the past v_ .ations, as well as ICI’s initiat:¢, coopera-

tiveness, anc .ommitment to spend a significant sum of

13

money to achieve compliance expeditiously. 29 F.3d

at 380; 842 F.Supp. at 1148; App. 3a-5a. The record

also shows that the amount assessed in the original CAO

was reviewed by no less than five ADPC&E staff mem-

bers prior to issuance. App. 3a. While the total amount of

the penalties assessed ($2,500) was substantially less

than the maximum allowed under the AWAPCA and

CWA, it is consistent with penalty amounts ADPC&E

previously required other permit holders to pay under

similar circumstances. 842 F.Supp. at 1148. Had AWF

wanted to challenge ADPC&E’s penalty determinations

based upon ICI’s alleged “‘economic benefit” and greater

“ability to pay,” it could have easily done so. AWF had

repeated opportunities to intervene and present its views

to ADPC&E, but simply chose not to. The court of

appeals’ assessment of AWF’s strategy bears repeating:

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 adminis-

trative process had it intervened.

29 F.3d at 382.

2. The Eighth Circuit further agreed with the district

court that the Arkansas Water and Air Pollution Control

Act is “comparable” to 33 U.S.C. §1319(g) within the

meaning of Section 1319(g)(6)(A)(ii). The district court

made a thorough examination of the provisions for

penalty assessment, public participation, and judicial

review under the AWAPCA and Section 1319(g), and

concluded that the two laws’ provisions were indeed

comparable in all critical respects. 842 F.Supp. at 1144-

47. However, before the Eighth Circuit, and now this

Court, AWF has argued only that the Arkansas statute is

not comparable to the CWA with respect to the public

14

notice and comment provision in Section 1319(g)(4)(A).

That argument is based upon an overly-restrictive view of

the “comparability” requirement and is wrong.

There is no language in 33 U.S.C. §1319(g)(6)(A) (or

its legislative history) that suggests Congress intended

to require that states adopt virtually the same adminis-

trative penalty procedures that apply to EPA under Sec-

tion 1319(g). Instead, Congress chose the adjective ‘‘com-

parable” to explain the requirement for state-prosecuted

actions. See 33 U.S.C. §1319(g)(6)(A) (“(ii) ... under a

State law comparable to this subsection, or (iii)...

under this subsection, or such comparabie State law. . . .”’)

(emphasis added). Its repeated use of this term indicates

plainly that state administrative procedures need to be

similar or analogous to the provisions in Section 1319(g),

but not necessarily identical. See also 133 Cong. Rec.

S737 (daily ed. Jan. 14, 1987) (remarks of Senator

Chafee that a state’s law must provide procedures “‘simi-

lar” or “‘analogous’”’ to those in Section 309(g) of the

CWA).

The clear congressional intent expressed in Section

1319(g)(4)(A) is that, in an administrative proceeding in

which a civil penalty is assessed, notice and a reasonable

opportunity for comment must be provided to facilitate

interested third-party input at a point where that input

can be incorporated into the resolution of the proceed-

ing. Legislative history confirms that what is required

is that “[p]ublic notice of such proceedings must be

given in a manner that will apprise interested citizens

of the proceedings.”” S.Rep. No. 50, 99th Cong., Ist

Sess. 27 (1985). Arkansas law clearly meets this require-

ment.

The Arkansas Water & Air Pollution Control Act

requires the ADPC&E to “ensure public notice, public

15

participation and an opportunity for public hearing in

respect to National Pollutant Discharge Elimination Sys-

tem permit applications and actions related to them in

accordance with applicable state and federal law and rules

and regulations.”” Ark. Code Ann. §8-4-207(5) (emphasis

added). The AWAPCA also requires ADPC&E to make

available to the public for inspection and copying all

NPDES permits, permit applications, and related docu-

mentation. Ark. Code Ann. §8-4-207(6}(A). Addition-

ally, any person who has submitted comments on any

enforcement matter can request an adjudicatory hearing

and be made a party to the proceeding. Ark. Code Ann.

§ §8-4-210, 8-4-212; ADPC&E Regulation No. 8, Part

VII, §1. ADPC&E’s regulations further provide that

“any person” may intervene “at any stage” of an enforce-

ment 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. ADPC&E

Regulation No. 8, Part VII, §5(a). ADPC&E’s orders do

not become final for at least 30 days after they are issued

by the Director. /d., Part V, §7(a); Part VI, §1.

It bears considerable emphasis that ADPC&E’s pro-

cedures for public notice and participation in adminis-

trative enforcement proceedings are consistent with EPA

published guidance that implements the Section 1319(g)

notice and participation requirements.” That document,

5 ADPCKE’s procedures also comply with EPA’s mandatory

requirement for public participation in state administrative enforce-

ment proceedings adopted for the purpose of reviewing state

NPDES permit programs pursuant to 33 U.S.C. §1342. Under

40 C.F.R. §123.27(d), a state NPDES program provides adequate

public participation in its enforcement process if the state has

established ‘‘authority which allows intervention as of right in any

[footnote continued]

16

Gi .dance on Class I Clean Water Act Administrative Pen-

alty Procedures (July 27, 1987) addresses Class I admin-

istrative penalties under Section 1319(g)(2)(A) (penalties

of up to $25,000) and provides that EPA “shall give

public notice by mailing a copy of the proposed adminis-

trative penalty order to . . . any person who requests

notice.”’ Jd. at 2-3. In addition, “at [/EPA’s] sole option,”

additional notice may be given to persons on a mailing

list or through publication in a newspaper of general

circulation. Jd. at 3. It is clear from this guidance that

EPA does not interpret Section 1319(g)(4) as requiring

the kind of broad public notice that AWF has argued is

essential to a finding that Arkansas law is comparable to

Section 1319(g).° Had EPA, rather than ADPC&E, been

the enforcing agency in this case, AWF would not have

had any claim to notice of a type that is more demanding

than that provided here. Put another way, the notice

requirements that govern U.S. EPA’s administrative

enforcement are factually and legally indistinguishable

from the notice that AWF initially acquired when it

examined ACPC&E’s public files.

It is undisputed that AWF had actual notice of the

original CAO entered against ICI for nearly five months

before filing this lawsuit, and that AWF also received

actual notice of the Corrected CAO and each of the

civil or administrative action to obtain remedies... by any citizen

having an interest which is or may be adversely affected.”

ADPC&E Regulation No. 8, Part VII, §5(a) satisfies this require-

ment.

6 When Congress intends that notice be given to the public

at large, Congress knows how to express that intent. See 33 U.S.C.

§ 1319(g)(4)(c) (“If the Administrator . . . denies a hearing under

this subparagraph . . . the Administrator . . . shall . . . publish in

the Federal Register, notice of and the reasons for such denial.”’)

17

amendments. It was not by accident or chance that AWF

learned of ADPC&E’s enforcement action against ICI.

AWF learned of the action in precisely the same manner

that it learned of ICI’s NPDES noncompliances—through

reviewing the ADPC&E’s NPDES permit records.’ It

also can not be denied that AWF had every opportunity

to intervene in the enforcement proceeding, but did not

do so. Instead, it chose to remain on the sidelines watch-

ing ADPC&E’s enforcement action and then collaterally

attacked the agency’s actions. Again, as the Eighth

Circuit observed, there is “no reason to believe that

AWF would have been denied meaningful participation

in the administrative process had it intervened.” 29 F.3d

at 382. AWF should not now be heard to complain that

it did not have adequate notice and opportunity to par-

ticipate in the state enforcement action when, in actual-

ity, AWF chose to ignore its administrative remedies.®

Under these circumstances, the Eighth Circuit was

clearly justified in concluding that Arkansas law is “‘com-

It is also noteworthy that, prior to filing suit under the

CWA, citizen plaintiffs have an affirmative duty to conduct a reas-

onable inquiry. into the facts to determine whether a potential

defendant is “in violation” of the CWA in order to make a good-

faith allegation of ongoing violation for jurisdictional purposes.

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,

484 U.S. 49, 65, 108 S.Ct. 376, 385, 98 L.Ed.2d 306 (1987).

Therefore, at a minimum, AWF was required to examine ICI’s

NPDES permit, discharge monitoring reports, and related docu-

ments (including ADPC&E’s enforcement orders) to ascertain

whether ICI would likely have continuing violations of its permit.

swith the exception of attorney’s fees, AWF could have

requested in the administrative action the same relief it requested

in its complaint in this matter. See Ark. Code Ann. § §8-4-103,

8-4-2083, 8-4-211 (ADPC&E’s authority to issue compliance orders

and assess administrative civil penalties).

18

parable” to the provisions for public notice and partici-

pation in Section 1319(g)(4).

3. The court of appeals was also correct in holding

that 33 U.S.C. §1319(g)(6)(A) bars AWF’s entire action

under the facts in the case. AWF has argued that it is

entitled to pursue claims for declaratory and injunctive

relief even though those claims are based entirely on

violations that were also the subject of ADPC&i’s

ongoing enforcement action. However, the terms of Sec-

tion 1319(g)(6)(A), together with other sections of the

CWA, show that the Eighth Circuit gave a reasonable

application to the statute consistent with its meaning and

legislative purpose.

33 U.S.C. §1319(g)(6)(A) provides that a violation

that is the subject of a prior state action under a compar-

able state law “‘shall not be the subject of a civil penalty

action under... . section 1365 of this title.’”” However, as

the court of appeals stated, the statute “mak s no men-

tion »f whether a citizen could otherwise bring an action

for declaratory or injunctive relief.”” 29 F.3d at 382. In

evaluating this question, it is particularly appropriate to

examine the provisions of the law as a whole and look to

its object and policy. United States Nat. Bank of Oregon,

supra, 112 S.Ct. at 2182.

When Congress enacted the Clean Water Act, it intended

for the states to maintain primary responsibility and the

federal government (through EPA) secondary responsi-

bility to “‘prevent, reduce, and eliminate [water] pollu-

tion.” 33 U.S.C. §1251(b); Gwaltney v. Smithfield. Ltd.

v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108

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

Senate Committee “intend[ed] the great volume of

enforcement actions [to] be brought by the State”);

Sa es Se

19

see also Connecticut Coastal Fishermen’s Ass'n v. Rem-

ington Arms Co., Inc., 777 F.Supp. 173, 177 (D. Conn.

1991) (“the Act contains ‘repeated expressions of the

intent of Congress that the States bear responsibility for

management and enforcement in the first instance,

though leaving ultimate authority to the Administrator

of the EPA.’ ”’) (quoting Grad, Treatise on Environmental

Law, 3-103). Congress envisioned that private citizens,

on the other hand, would serve in only a supplemental

role—as private attorneys general “if the Federal, State

and local agencies fail to exercise their enforcement

responsibility.”” Gwaltney, supra, 484 U.S. at 60, 108

S.Ct. at 383 (quoting S.Rep. No. 92-414, p. 64 (1971)).

Therefore, when enacting the citizen suit provision in

Section 505 of the CWA, 33 U.S.C. §1365, Congress

authorized citizens to enforce certain provisions in the

Act only “{i]n the absence of federal or state enforce-

ment.” Gwaltney, 484 U.S. at 53, 108 S.Ct. at 379

(emphasis added). See 33 U.S.C. §1365(a) (“Except as

provided in subsection (b) of this section and section

1319(g)(6) of this title, any citizen may commence a

civil action. . . .”) (emphasis added). The central purpose

of the citizen suit provision is to “[permit] citizens to

abate pollution when the government cannot or will not

command compliance.” Jd. at 62, 108 S.Ct. at 384

(emphasis added).

The dichotomy between government and citizen roles

is also apparent in the availability of enforcement reme-

dies. Congress has afforded EPA a choice of several

different remedies that it can pursue to enforce violations

of the CWA. EPA can issue compliance orders adminis-

tratively and/or bring a civil action in district court to

obtain coercive relief against a violator. 33 U.S.C. §1319

(a) and (b). The agency can also assess civil penalties

20

administratively and/or bring a civil “penalty action” in

district court. 33 U.S.C. §1319(b), (d), and (g). This

Court recognized the separate grant of EPA’s authority

for these remedies in Gwaltney. See supra at 108 S.Ct. at

382 (citing Tull v. United States, 481 U.S. 412, 107

S.Ct. 1831, 95 L.Ed.2d 365 (1987)). With respect to

citizens, it is apparent that Congress intended to some-

what limit the availability of these same enforcement

remedies:

In contrast, §505 of the Act 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. 33

U.S.C. §1365(a). The citizen suit provision, sug-

gests a connection between injunctive relief and

civil penalties that is noticeably absent from the

provision authorizing agency enforcement.

Gwaltney, supra at 58. 108 S.Ct. at 382. In holding in

Gwaltney that citizens cannot sue violators for wholly

past violations, the Court concluded that a claim for

coercive relief is a necessary element of any action for

civil penalties brought by citizens. Jd.

Given that every citizen suit seeking civil penalties

must be connected to a claim for coercive relief, it

would make no sense for Congress to preclude an action

for penalties without also precluding the underlying |

action for compliance based upon the same violations.

In Section 1365(b), Congress clearly expressed its intent

to authorize “no action” whatsoever where EPA or a

state “has commenced and is diligently prosecuting” a

civil or criminal action against a violator. It would seem

logical that Congress intended that a similar meaning

apply where EPA or a state “has commenced and is

diligently prosecuting” an administrative action against

i ————-

21

a violator. The language in Section 1319(g)(6)(A) is

consistent with this intent. The statute provides that

violations that are the subject of administrative enforce-

ment “shall not be the subject of a civil penalty action

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

of this title or section 1365 of this title.”’ Section 1319

(g)(6)(A) bars each of these court actions completely,

and the phrase “civil penalty action” distinguishes a civil

action which EPA may initiate in court from an adminis-

trative action by the agency itself.?

In sum, it follows that where as in this case a private

citizen seeks penalties as well as declaratory and/or

injunctive relief, and the violations on which those

claims are based are already the subject of an adminis-

trative enforcement action that a state “has commenced

and is diligently prosecuting,” then the entire action is

barred under Section 1319(g)(6)(A). The contrary posi-

tion advanced by AWF would lead to the odd result of

giving deference only to ADPC&E’s authority with

respect to penalty assessment and ignoring its injunctive

authority. As the First Circuit pointed out in North and

South Rivers Watershed Ass’n. v. Scituate, 949 F.2d

552 (1st Cir. 1991), “[s]uch a result would not only be

undesirable, . . . it would be absurd.” Furthermore, per-

mitting AWF’s suit for injunctive relief to go forward

would undermine the government enforcement process

9 This interpretation is fully supported by remarks of Senator

Chafee, the principal author of the Senate bill that became Sec-

tion 1319(g)(6), at the time of enactment: “[Section] ‘*309(g)(6)

sets out limitations that preclude citizen suits where [certain

enforcement action have been taken and] limits Federal civil

actions under subsections 309(d) and 311(b).” 133 Cong. Rec.

S737 (daily ed. Jan. 14, 1987) (emphasis added).

22

and change the nature of the citizens’ role from “‘inter-

stitial” to “‘intrusive.’’ Gwaltney, 484 U.S. at 61, 108

S.Ct. at 383,10

Il.

THE EIGHTH CIRCUIT’S DECISION DOES NOT CON-

FLICT WITH A DECISION OF ANY OTHER COURT

OF APPEALS

The Eighth Circuit’s decision in this case is not in con-

flict with a decision of any other United States Court of

Appeals. The First Circuit is the only other appellate

court that has addressed the issues decided by the Eighth

Circuit in this case (i.e., (1) whether 33 U.S.C. §1319(g)-

(6)(A)(ii) bars a citizen suit when a state has previously

commenced and is diligently prosecuting an administra-

tive enforcement action against the defendant for the

same violations under a comparable state law, and (2)

whether Section 1319(g)(6)(A) bars a citizen suit claims

for declaratory and injunctive relief, as well as the claim

for civil penalties).

10-rhis Court addressed the dangers of this kind of interfer-

ence with state administrative enforcement in Gwaltney:

Suppose .. . that the Administrator agreed not to

assess or otherwise seek civil penalties on the condition

that the violator take some extreme corrective action,

such as to install particularly effective but expensive

machinery, that it otherwise would not be obliged to

take. If citizens could file suit, months or years later,

in order to seek the civil penalties that the Administra-

tor chose to forgo, then the Administrator’s discre-

tion to enforce the Act in the public interest would be

curtained considerably. The same might be said of the

discretion of state enforcement authorities.

484 U.S. at 60-61, 108 S.Ct. at 383. ADPC&E considered AWF’s

collateral attack to be “in direct conflict with [the Department's]

attempts to protect the environment through proper administrative

procedures and remedies.” App. 8a.

23

In North & South Rivers Watershed Ass’n, Inc. v.

Town of Scituate, 949 F.2d 552 (1st Cir. 1991), a case

factually quite similar to this one, the First Circuit held

that 33 U.S.C. §1319(g)(6)(A) barred a citizen group’s

action against the town of Scituate because the Massachu-

setts Department of Environmental Protection had pre-

viously commenced and was diligently prosecuting an

enforcement action against the town under a comparable

state law. The First Circuit examined the Massachusetts’

statutory scheme as a whole and found it to be compar-

able to Section 1319(g). The court of appeals gave the

following reasons for its conclusion:

First, the interdependent scheme of the State

Act effectuates its goals of ensuring compliance

with and enforcement of protective regulations.

The focus of the statutory bar to citizen’s suits is

not on state statutory construction, but on whether

corrective action already taken and diligently pur-

sued by the government secks to remedy the same

violations as duplicative civilian action. DEP is

already acting to correct the violations upon which

Appellants focus their action. Duplicative enforce-

ment actions add little or nothing to compliance

actions already underway, but do divert State

resources away from remedying violations in order

to focus on the duplicative effort.

Second, the goal of all actions brought under the

Clean Water Acts [sic] is “to restore and maintain

the chemical, physical, and biological integrity of

the nation’s waters.”’ 33 U.S.C. §1251(a). Duplica-

tive actions aimed at exacting financial penalties

in the name of environmental protection at a time

when remedial measures are well underway do not

further this goal. They are, in fact, impediments to

environmental remedy efforts.

24

It is enough that the Massachusetts statutory

scheme, under which the State is diligently proceed-

ing, contains penalty assessment provisions com-

parable to the Federal Act, that the State ts author-

ized to assess those penalties, and that the overall

scheme of the two acts ts aimed at correcting the

same violations, thereby achieving the same goals.

What the Appellant’s suit seeks to remedy is already

in the process of being remedied by the State Ad-

ministrative Order, an action comparable to section

309(g).

949 F.2d at 556 (footnotes omitted; emphasis added).

The First Circuit also held that Massachusetts’ provi-

sions for public participation were comparable to Sec-

tion 1319(g)(4)(A) even though the state act did not pro-

vide for prior public notice of enforcement orders since:

(1) all administrative orders issued by the state agency

were public documents; (2) any individual could inter-

vene in actions brought to assess civil penalties upon

showing adequate cause; and (3) any person having an

interest in the matter could file a claim for an individual

hearing. Jd. at 556, n.7.

In the present case, the Eighth Circuit expressed agree-

ment with the First Circuit’s construction of the “com-

parability” provision in § 1319(g)(6)(A), stating:

We agree with the reasoning in Scituate that the

comparability requirement may be satisfied so long

as the state law contains comparable penalty pro-

visions 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 safe-

guards their legitimate substantive interests.

29 F.3d at 381-82 (citation omitted).

25

It should be noted that the facts supporting a finding

of “comparability” are even more compelling in the

present case than in Scituate. Arkansas has been author-

ized by EPA to administer the federal NPDES permit

program under the Arkansas Water and Air Pollution

Control Act, whereas Massachusetts’ act had not received

certification by EPA. 949 F.2d at 556, n.8. Additionally,

ADPC&E assessed civil penalties against ICI, whereas the

town of Scituate was not actually penalized, although the

order against it reserved the right to do so at a later date.

949 F.2d at 554. Furthermore, AWF received actual

notice of ADPC&E’s enforcement action and was clearly

capable of intervening, had it chosen to do so, whereas

there is no indication of the citizen plaintiff receiving the

same notice in Scituate.

AWF’s argument that the Eighth Circuit’s decision in

this case conflicts with the Ninth Circuit’s decision in

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

883 (9th Cir. 1993) is also incorrect. In Pendleton,

supra, EPA instituted an administrative “compliance

action” against Pendleton Woolen Mills, Inc. approxi-

mately one and a half years before Washington Public

Interest Research Group brought its citizen suit against

Pendleton. As the court of appeals emphasized in its

holding, “the EPA was not pursuing an administrative

penalty under section 1319(g). Rather, the EPA acted

pursuant to section 1319(a) when it issued a compliance

order to Pendleton.” 11 F.3d at 885. After analyzing

the statutory provision in Section 1319(g)(6)(A)(i), the

First Circuit concluded that the citizen suit was not

barred since EPA clearly had not instituted an action for

administrative penalties under Section 1319(g). The

Court made no analysis whatsoever of Section 1319(g)-

(6)(A)(ii) which was addressed by the Eighth Circuit in

26

this case. Furthermore, the Ninth Circuit did not reach

the issue of whether a citizen suit seeking declaratory

and injunctive relief can be barred by Section 1319(g),

since the court held that ‘‘the compliance order pursued

by the EPA [did] not bring into play the citizen suit

preclusion of section 1319(g)(6).” Jd. at 887. Therefore,

it is clear that the Eighth Circuit’s holdings in the present

case do not conflict in any way with the Ninth Circuit’s

decision in Pendleton, and AWF’s allegation of a “split

of authority” in the circuits is wrong."

The Court should decline AWF’s invitation to correct

any alleged misreading of dicta in this Court’s decision

in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., supra. The Eighth Circuit fully considered

and correctly decided the issues presented in this case,

and its decision is clearly not in conflict with any of the

holdings (or dicta) stated in Gwaltney.

1] 4 dditionally, the district court decisions alleged by AWF

to be in direct conflict with the Eighth Circuit’s decision are also

readily distinguishable on their facts and the law. See NRDC v.

Vygen Corp., 803 F. Supp. 97 (N.D. Ohio 1992) (Ohio’s law held

not comparable to Section 1319(g) since intervention as of right

was not provided and the Ohio agency had discretion to avoid

public participation in the enforcement process); PIRG v. GAF

Corp., 770 F. Supp. 943 (D. N.J. 1991) (held that New Jersey’s law

did not provide for adequate public comment or a hearing on an

administrative order, but opinion did not discuss whether the citi-

zen group received notice of the order); Atlantic States Legal

Found., Inc. v. Universal Tool & Stamping Co., Inc., 735 F. Supp.

1404 (N.D. Ind. 1990) (held that Indiana’s laws were not com-

parable to Section 1319(g) because the state’s statutes (1) did not

specify any factors to be considered in assessing an administrative

penalty (2) did not allow for judicial review of administrative

orders by citizens (3) did not require public notice of hearings, and

(4) did not provide the public with a reasonable opportunity to

comment upon penalty assessments).

27

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

JAMES F. GOODHART

BANKS, DODSON,

GOODHART & SPADES

425 West Capitol Avenue

Suite 1590

Little Rock, Arkansas 72201

(501) 375-8700

Counse! for Respondent,

ICI Americas Inc. (now

known as ZENECA Inc.)

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

No. LR-C-91-681

ARKANSAS WILDLIFE FEDERATION,

Plaintiff

vs.

ICI AMERICAS, INC.

Defendant

*e eK KK kK K Ke &

DISCOVERY DEPOSITION OF MARK BRADLEY

(Taken June 17, 1992)

*exe eK KK KK K &

[EXERPTS]

EXAMINATION

[4] BY MR. LEDBETTER:

Q. State your name for the record, please.

A. It’s Mark Bradley.

Q. Mark, where are you employed?

A. Arkansas Department of Pollution Control &

Ecology.

* * *

[9] Q. Did you meet with representatives of ICI on March

5th?

2a

A, ¥e%.

Q. 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 [10] taken because of those vio-

lations. There’d also been an inspection in December of

90 by one of our inspectors. And we discussed that,

because I had already gotten the response that they had

made to the inspection.

I found out in the meeting that they had had a couple

of—I guess at that time—I guess they’d had two meetings

with plant personnel about the NPDES problem and what

needed to be done to correct it. And they’d already taken

some—about four different phases they were looking at

to correct the problem.

Q. They had already taken those, or they were looking

at taking those?

A. They had developed a plan to take those actions.

Q. Do you know when they developed that plan?

A. I believe it was November of ’90 when they first

had their meeting with their plant personnel, somewhere

in that same time frame.

[11] Q. Was there a consent administrative order submit-

ted to ICI at that meeting?

A. We discussed the contents of what would be in the

consent order. I don’t believe that we presented one at

the meeting. It was sent to them, because our normal

procedures was to discuss what we intend to do, route it

through our channels, and then mail it to them. So I

don’t believe one was given to him at the meeting.

co ee ee eS

3a

Q. What was discussed as far as what would be done

concerning enforcement by ADFC&E;

A. We discussed three actions we normally take. One

is a consent administrative order, which generally is the

way the agency would like to go, and it’s in the best

interest of the industry. If they didn’t want to go that

route, then a notice [12] of violation would be the route

that we would go. That would go before an administra-

tive law judge. And if we didn’t want to go that route,

then we could go the legal route.

Q. What’s the legal route?

A. Take it to court for a civil action.

Q. And what was the company’s response?

A. They wanted them to do a consent administrative

order with us.

Q. All right.

A. And based on that, the draft was routed through

our people and sent to them.

Q. You drafted it yourself?

A. Yes.

Q. Who did you route it through?

A. Joe Williford. The NPDES branch manager, Marysia

Jastrzebski, the assistant water division chief, Dick

Quinn, legal division, and the director, Randall Mathis.

Q. And that was before it was sent to ICI?

A. Yes.

Q. Did you discuss at the meeting the history of

violations of the company?

A. Yes.

Q. Were you aware that the violations dated back to

the effective date of their NPDES permit?

A. What I had looked at as far as the meeting was

concemed [13] was just the last year, but I knew there

were some prior to that.

+a

Q. Did you have any information concerning the

seriousness of the violations?

A. I remember I looked at the violations, but I don’t

recall the severity of them.

Q. At that time did that enter into your determina-

tion as how to proceed with this matter?

A. It did.

Q. In what way?

A. What we intended through the consent order

was—well, two things, to correct previous violations

which date back to the beginning of the permit, and see

if a corrective action plan would be presented that we

would approve and get them into compliance. That was

the intent of the consent order.

Q. When you say “correct previous violations,” I

don’t understand what you’re referring to.

A. The penalty that would be addressed in the con-

sent order would take care of past violations.

*x* * *

Q. Okay. And what was the penalty that was pro-

posed?

[14] A. $1,000.

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. 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

ee ee eee

i

5a

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 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.

* * *

[35] BY MR. GOODHART:

Q. Mr. Bradley, I’m going to show you a document

and ask you if you can identify that, please.

A. This is a consent order that was entered into April

of ’91.

Q. At any time during the March 5th, 1991 meet-

ing that you had mentioned earlier, did you tell Mr.

Wheeler or Mr. Baber that the consent administrative

order that was being discussed and that the payment of

the fine that was mentioned, $1,000, that that was

intended to cover only certain non-compliances under

ICI’s permit during 1990 and January of 1991?

A. No. Our usual procedure in the meetings was to

mention [36] that the consent order would cover the

previous violations.

Q. Okay.

A. And not narrow it down to certain ones.

6a

Q. The previous violations under the current NPDES

permit?

A. Yes.

Q. Was there any mention by Mr. Williford to the

effect that that the department only wanted to enter into

a CAO for non-compliances from January 1990 to Janu-

are 1991?

A. No.

Q. So that I’m clear, was it your understanding that

the agreement was that the past non-compliances for

ICI’s permit, which had been issued in the fall of 1988,

that those past non-compliances were being settled

through the CAO and the payment of the $1,000 civil

penalty?

A. That was our intent with the consent order.

* * *

7a '

APPENDIX B

[SEAL] [SEAL]

STATE OF ARKANSAS

DEPARTMENT OF

POLLUTION CONTROL AND ECOLOGY

8001 National Drive, P.O. Box 8913

Little Rock, Arkansas 72219-8913

Phone: (501) 562-7444

Fax: (501) 562-4937

February 8, 1992

Mr. Dan Palmer, Attorney

Office of Enforcement

Environmental Protection Agency

401 MSt. SW

Washington D.C.

RE: PC&E Consent Administrative Order 91-074-004,

Amendment #3

NPDES Permit AR0042901

Dear Mr. Palmer:

As we discussed on the phone today I am transmitting to

you a memo I recently prepared dated Jan. 21, 1993 to

Steve Weaver, PC&E Chief Counsel, concerning Permit

AR0042901. I also conveyed to you that I had discussed

the matter at length with Mr. Chuck Bennett, Chief,

Water Division, PC&E, who indicated that we were not

moving forward with any further enforcement action at

the present time and that there was no reason to modify

the latest Amendment. It is the Department’s position

that the Amendment is not a modification of the Permit,

but merely an agreement between PC&E and ICI with

regard to enforcement of specific items until such time as

the permit issues can be appropriately resolved.

8a

Concerning the recently filed Motion for Emergency

Declaratory Relief by the Arkansas Wildlife Federation,

it is our position that the Plaintiff (AWF) could appeal

the Amendment to our Commission, if done in a timely

manner. Their attempts to protect their “continuing

violations” are in direct conflict with our attempts to

protect the environment through proper administrative

procedures and remedies. Also, we do not feel that a

ruling one way or another will set any precedent for

future cases, however, if your Agency chooses to inter-

vene in the matter as you stated, we will certainly provide

all the facts available to us and any information you

desire.

Sincerely,

/s/ Randal K. Oberlag

Randal K. Oberlag, P.E.

Enforcement Engineer/Attomey

NPDES Enforcement Section

cc: Mr. Chuck Bennett

Mr. Joe Williford

Mr. Steve Weaver

Fy ee ee eee

9a

STATE OF ARKANSAS

DEPARTMENT OF POLLUTION CONTROL

AND ECOLOGY

MEMORANDUM

DATE: January 21, 1993

TO: Mr. Steve Weaver, Chief Counsel

FROM: Randal K. Oberlag, Enforcement Engineer/

Attorney

SUBJECT: Zeneca, Inc.; a.k.a. I.C.I. Americas, Inc.—

NPDES #AR0042901

Steve—At the request of Marysia Jastrzebski, P.E. I have

prepared this memo with attached information which

provides a review of the Department’s Enforcement

action with respect to the subject permit. This facility

is involved in a citizens suit, (Plaintiffs are represented

by Sam Ledbetter) with ICI being represented by Jim

Goodhart and Chuck Nestrud. The following is a sum-

mary of the CAO activity and then is followed by a

synopsis of relevant correspondence and meetings held

since the CAO was issued.

SUMMARY OF CAO ACTIVITY

EFFECTIVE DATE

CAO# DATE PENALTY PAID

91-074 4/16/91 $1000 4/18/91

91-074-001 9/9/91 n/a n/a

91-074-002 12/20/91 $500 1/10/92

91-074-003 4/30/92 $500 5/15/92

91-074-004 1/7/93 $500 pending

CAO 91-074 was the result of an enforcement meeting

held on 3/5/91. The meeting was called due to numerous

10a

effluent violations. The CAO required corrective action

that was discussed in the meeting in addition to the

payment of a penalty. (A written version of the correc-

tive action plan presented at the meeting was not found

in the files.)

CAO 91-074-001 was a “corrected” version of the CAO

which expanded the listing of past effluent violations in

the Findings of Fact back to 11/88. The wording was

likewise modified to more broadly cover past violations

to be settled under the CAO.

CAO 91-074-002 (Amendment #1) extended the com-

pliance schedule date from 12/31/91 to 4/30/92 for

Achieve Compliance. The Amendment also levied a $500

penalty “for all violations occurring up to and including

the date (of) this agreement. . . .”. A Request for Exten-

sion was filed by Chuck Nestrud on Dec. 26, 1991 and

included supporting material which was properly re-

viewed. The 4/30/92 achieve date was closed out by

91-074-003.

CAO 91-074-003 (Amendment #2) required ICI to sub-

mit an application to establish effluent limits for new

outfall 004 by 6/15/92 (submitted on time) based on a

Construction Permit issued on Apmil 2, 1992, which

anticipated the elimination of Outfalls 001, 002 and

003 and the construction of a new Outfall 004 which

combined the flows from the three existing Outfalls. The

Amendment required ICI to complete 004 construction

by 7/31/92 (completed on time). ICI was required by

the Amendment to come into full compliance with its

permit by 12/15/92. Until ADPC&E made a decision on

the Outfall 004 application or 12/15/92, whichever came

first, all reporting requirements would remain the same,

except the requirements for Zinc would be “report

only.” ICI was also required to provide sample data on

lla

outfall 004 as an addendum to the DMRs, as well as to

continue to monitor and report at the catch basin points

of the former 3 Outfalls. A $500 penalty was levied.

Further engineering studies regarding the zinc were

required by the Amendment since they were required to

submit an application to establish effluent limits on

Outfall 004. It was the opinion of enforcement that this

process would determine the zinc limits with a number

that would be determined on a technical basis utilizing

current standards, as well as, allowing the facility to con-

tinue its process of zinc source discovery and reduction.

It was anticipated by enforcement that a permit for Out-

fall 004 could be and would be issued within a 6 month

review time.

CAO 91-074-004 (Amendment #3) discontinued samp-

ling and reporting for outfalls 001, 002, and 003 effec-

tive 12/15/92, since these outfalls no longer existed and

further sampling at the catch basins at these points would

not yield any useful new information. The Amendment

established outfall 004 as the relevant sampling and

reporting point. The effluent limits for outfall 004 would

be the same as specified in the permit for 001 except

Zinc would be “report only” until 10/31/93. A $500

penalty was assessed for ““ADPC&E’s costs.” This amend-

ment was the result of the Department not being able to

issue a permit modification to provide effluent limita-

tions for Outfall 004, which was constructed under the

Construction Permit issued on April 2, 1992. In a

meeting with ADPCE in 12/8/92, ICI requested the

permit modification (or new permit) per it’s application

of June 15, 1992. The implementation strategy for

metals is current being developed by the Department

based on EPA Rule promulgation and as the Department

12a

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 extend-

ing monitoring and reporting conditions through Oct. 31,

1993 and requiring “report only” for zinc was appro-

priate. The facility agreed to be bound by the remaining

limits of the “3 terminated outfalls’”’ for Outfall 004.

i te ee el

13a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ARKANSAS WILDLIFE FEDERATION

Plaintiff

.

ICI AMERICAS INC.

Defendant

Case Number LRC-91-681

STATE OF ARKANSAS

COUNTY OF PULASKI

AFFIDAVIT OF STEVE A. WEAVER

Steve A. Weaver, being first duly sworn, states:

1. I am currently employed as the Chief Legal Counsel

for the Arkansas Department of Pollution Control &

Ecology (““ADPC&E”) and have worked in that capacity

since October 1988. I have been employed at ADPC&E

since 1987.

2. Statements made in this Affidavit are based upon

my personal knowledge, and upon information which has

become available to me in my employment capacity, and

are true and accurate to the best of my information and

belief.

3. Consent Administrative Orders (“‘CAOs’’) are the

typical manner in which administrative enforcement

actions are resolved at ADPC&E. Typically ADPC&E sub-

l4a

mits a proposed CAO to the regulated entity. If the

regulated entity is in agreement with the ADPC&E’s pro-

posal, it executes the CAO and forwards it to ADPC&E.

The Director reviews it, and if he decides to execute the

CAO he signs it and the CAO is then given to a secretary

in the Legal Division who maintains the Legal Informa-

tion System (‘‘LIS’’) files. The CAO is then given a LIS

number, the original CAO is placed in the LIS files, and

a copy is mailed to all parties. The LIS files, as well as all

records, reports, and other information, including all

documents related to National Pollutant Discharge Elimi-

nation System (NPDES) permits, are public documents

that are made available to the public for inspection and

copying during the regular business hours of the ADPC&E

in accordance with the policies of ADPC&E and the

Arkansas Freedom of Information Act of 1967, Ark.

Code Ann. §25-19-101, et seq.

4. The Environmental Protect on Agency (“‘EPA”’),

which is required to assess ADPC&E’s administration of

the State NPDES Program on a continuing basis for

consistency with the Federal Clean Water Act and all

applicable federal regulations and policies, has never

notified the State in wniting that any of the State’s public

participation policies, practices, and/or procedures are in

any way deficient.

/s/ Steve A. Weaver

Steve A. Weaver

SWORN TO AND SUBSCRI».w before me this 5th

day of October, 1992.

/s/Patricia A. Noller

My Commission Expires: Notary Public

12/17/2000