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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1147

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0786%3A2. Public record. Not legal advice.