Reply Brief — Stroh Die Casting Co. v. Atlantic States Legal Foundation, Inc.

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No. 97-479 F ? ;

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In The :

SUPREME COURT OF THE UNITED STATES

October Term, 1996 ’

STROH DIE CASTING CO.,

Petitioner,

v.

ATLANTIC STATES LEGAL FOUNDATION, INC.,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

Roy E. Wagner

Counsel of Record

John H. Niebler

James J. Carrig

Niebler, Pyzyk & Wagner

N95 W16975 Richfield Way

Menomonee Falls, Wisconsin 53051

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TABLE OF CONTENTS

pr be gs ee ae eee ee ii

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I. Atlantic States cannot reconcile the

significant conflict between the Seventh

Circuit’s decision and Hallstrom. ....... l

II. Government agencies, rather than private

plaintiffs, are the primary enforcers of the

ee ee ee ee ee 5

Il. A single exceedence of one milligram

based upon a faulty laboratory test does

not make a "continuing violator". ....... 9

e880 rer ert rte re eee ae eee 10

TABLE OF AUTHORITIES

Page

CASES

Atlantic States Legal Found. v. United

Musical Instruments, 61 F.3d 473,

NG I Gee oaks be kn sos ve owe kee 3,4

California Sportfishing Protection

Alliance v. City of West Sacramento,

SOS Fae. Tis, Cee, TOPO) «ws ww ee ees 2,7,9

Gwaltney v. Chesapeake Bay Foundation,

484 U.S. 49, 108 S.Ct. 376,

ee ee ee ee eee ee ee ee 8

Hallstrom v. Tillamook County, 493 U.S. 20,

110 S.Ct. 304, 107 L.Ed.2d 237 (1989),

reh’g denied, 493 U.S. 1037,

Sa ee CO SOs 6 i 88 ek Se ee 1, 2, 3, 4, 8

Public Interest Research Group of New Jersey, Inc.

v. Hercules, Inc., 50 F.3d 1239,

ee er are ee er ee 3,4

Washington Trout v. McCain Foods, Inc.,

Fe Se ee 6 a on ek ho wok he ee 4

STATUTES AND REGULATIONS

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Wisconsin Administrative Code,

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Wisconsin Administrative Code,

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ARGUMENT

This case drones on with no possible purpose other than

Atlantic States Legal Foundation’s ("Atlantic States") attempt to

garner attorney fees from Stroh Die Casting Co. ("Stroh") This

case started in 1989 and has never had a hearing in the district

court. It was dismissed twice by the district court -- in 1989 on

the court’s own motion and in 1996 on summary judgment.

Among other claims, Atlantic States bases jurisdiction on

an alleged one milligram exceedence in 1992, supported only by

a faulty laboratory test. It is physically impossible for Stroh to

have been in violation at any of the noticed outfalls after 1990. It

is also undisputed that Stroh has never been fined or sanctioned by

any government agency for any violation of the Federal Water

Pollution Control Act (Clean Water Act, 33 U.S.C. § 1251 et.

seq.). Atlantic States’ ability to keep this case on life support

derives from the Seventh Circuit’s mistaken and misguided

decision to dilute the notice requirements of the Clean Water Act.

I. Atlantic States cannot reconcile the

significant conflict between the Seventh

Circuit’s decision and Hallstrom.

In its Brief in Opposition, Atlantic States dons blinders and

states that there is no conflict between the Seventh Circuit’s

interpretation of the notice requirement of the Clean Water Act and

this Court’s decision in Hallstrom v. Tillamook County, 493 U.S.

20, 110 S.Ct. 304, 107 L.Ed.2d. 237 (1989), reh’g denied, 493

U.S. 1037, 100 S.Ct. 761 (1990). Hallstrom directs the lower

courts to strictly construe notice provisions like the one in the

Clean Water Act:

[T]he Notice and 60-day delay requirements are

mandatory conditions precedent to commencing

suit under the RCRA citizen suit provision; a

district court may not disregard these requirements

at its discretion.

Hallstrom, 493 U.S. at 31. As the various court of appeals

decisions have held, these mandatory requirements are not limited

to simply sending a vague notice to the requisite persons and

government agencies and waiting 60 days. Rather, the notice must

include meaningful information required by the statutes and

regulations:

The language of [40 C.F.R. § 135.3] does not

suggest that the notice may be good enough if it

generally orients the agency or violator as to the

type of the violation. . . . [T]he recipient of the

notice must understand from the notice what the

citizen is alleging, not what the citizen could allege

if the citizen knew more or cared about other

possible transgressions.

California Sportfishing Protection Alliance _v. City of West

Sacramento, 905 F.Supp. 792, 799 (E.D.Ca. 1995).

The Seventh Circuit would allow Atlantic States to proceed

with claims related to MMSD outfall 4 -- an outfall which was

never included in a 60-day notice of intent to sue. As Judge

Manion recognized in his dissent, the Seventh Circuit’s "expansive

reading" of the notice requirement runs afoul of Hallstrom’s

2

mandate to strictly construe the notice requirement. (Appendix B,

B-20)

Atlantic States stretches logic even farther in its claim that

the Seventh Circuit’s decision does not conflict with Atlantic States

Legal Foundation v. United Musical Instruments, 61 F.3d. 473

(6th Cir. 1995) and Public Interest Research Group of New Jersey,

Inc. v. Hercules, Inc., 50 F.3d 1239 (3d. Cir. 1995).

In United Musical Instruments, the Sixth Circuit followed

Hallstrom and rejected arguments -- synonymous with Atlantic

States’ arguments here -- for a vague, "catch-all" notice. In

United Musical Instruments, Atlantic States (the citizen-plaintiff in

that case as well) sued for a 1991 violation of the Emergency

Planning and Community Right to Know Act of 1986 ("EPCRA",

42 U.S.C. §11001 et. seq.) although the violation was not included

in its 60-day notice. The Sixth Circuit found that the district court

lacked jurisdiction to hear this claim because Atlantic States’

"catch-all" notice, which provided that a future suit would include

"violations not yet known to ASLF of other EPCRA reporting

requirements", was insufficient. United Musical Instruments, 61

F.3d at 478.

Atlantic States attempts to distinguish United Musical

Instruments as a case arising under EPCRA, rather than the Clean

Water Act. (Respondent’s Brief in Opposition, 10) In presenting

this "distinction", Atlantic States ignores the fact that the 60-day

notice provision of EPCRA, 42 U.S.C. § 11046(d), is

substantively identical to the notice provisions in both the Clean

Water Act and the Resource Conservation and Recovery Act of

1976 ("RCRA", 42 U.S.C. § 6972). See United Musical

Instruments, 61 F.3d at 478; Hercules, 50 F.3d at 1246;

Washington Trout v. McCain Foods, Inc., 45 F.3d. 1351, 1353 n.

3, (9th Cir. 1995). In fact, as the Court noted in Hallstrom, the

notice provisions in each of these environmental laws were based

upon the 60-day notice provision of the Clean Air Amendments of

1970, 42 U.S.C. §7604. Hallstrom, 493 U.S. at 23. Atlantic

States’ attempt to distinguish United Musical Instruments fails.

Clearly Hercules also conflicts with the Seventh Circuit’s

decision. In Hercules, the Third Circuit extended jurisdiction over

Clean Water Act violations which the citizen-plaintiff did not

specifically notice only when they are "interconnected" with

violations that were noticed. Contrary to Atlantic States’ claim at

pages 8-9 of its Brief, the Third Circuit clearly limited

"interconnected" violations to "violations of the same type (same

parameter, same outfall) occurring during and after the period

covered by the notice letter." Hercules, 50 F.3d at 1250. In the

present case, the Seventh Circuit has moved far beyond the Third

Circuit’s already-relaxed reading of the notice requirement.

The Seventh Circuit’s decision conflicts with the policy of

strict construction set forth in Hallstrom and applied in United

Musical Instruments and Hercules. The Seventh Circuit’s new,

flexible interpretation of the notice requirement will no doubt

invite even more citizen suits and will further burden the federal

courts.

Il. Government agencies, rather than

private plaintiffs, are the primary

enforcers of the Clean Water Act.

The installation of the new treatment system was not a

scheme by Stroh to avoid detection by Atlantic States. Rather, this

project, closely monitored by the permitting agency, was part of

Stroh’s effort to effectively treat all process wastewater. As Judge

Manion stated in his dissent, the record properly supports the

"conclusion that Stroh methodically and effectively addressed the

problem,” and did not “play[] a shell game with the regulatory

authorities (and Atlantic) by constructing the new wastewater

treatment [system]." (Appendix B, B-19-20)

Atlantic States’ Brief in Opposition misstates the facts

regarding MMSD outfall 4. Since Stroh’s first permit, in July,

1989, MMSD outfall 4 was a separate monitoring and reporting

station, just like MMSD outfall 3. MMSD outfall 4 is where

wastewater from Stroh’s parts washer and deburring were

discharged. Such- wastewater was still discharged there after the

new treatment system was hooked up in 1990. MMSD outfall 4,

as a monitoring station, was not moved or renumbered. (Appendix

B, B-20)

Stroh did not repipe or install treatment equipment in

response to Atlantic States’ lawsuit. The lawsuit was irrelevant to

what Stroh was already doing to address wastewater issues.

5

iii iia

(Appendix B, B-16, 20) The DNR approved Stroh’s plans for the

new treatment system in March, 1990, weeks before Atlantic States

filed its amended complaint. In fact, Atlantic States’ first

complaint was dismissed during the time Stroh was planning the

new system and ordering equipment for it.

Atlantic States’ assertion that it would require

"clairvoyance" to provide a 60-day notice of intent to sue for the

alleged violations at MMSD outfall 4 is pure fiction. (Atlantic

States’ Brief in Opposition, 15) As the district court recognized,

Atlantic States most certainly could have provided Stroh, the U.S.

Environmental Protection Agency, and the Wisconsin Department

of Natural Resources ("WDNR"), with a notice of intent to sue for

violations at MMSD outfall 4. (Appendix A, A-13-14) Stroh’s

first permit, in July, 1989, identified MMSD outfall 4 as a process

wastewater discharge point. (Appendix B, B-20) Monitoring

reports for MMSD outfall 4 were available to Atlantic States

starting in 1989 -- and continued to be available after the treatment

system became operational in June, 1990. (Appendix B, B-20) It

would have been a "minimal imposition" on Atlantic States to

provide the appropriate notice for MMSD outfall 4 and later

amend its complaint.'

' This was precisely the position taken by the United States in its

amicus brief in Hercules: "As the United States discusses, if the citizen

plaintiff develops reporting violations in the course of discovery there is

no reason why the plaintiff cannot give the sixty day notice and then seek

to amend the complaint to add the new allegations." California

6

Atlantic States’ concerns that companies like Stroh will hire

armies of plumbers to constantly shift wastewater discharges to

different outfalls in order to avoid citizen suits is misplaced and

silly. (Brief in Opposition, p.15) For one thing, each outfall, by

its permit definition, is subject to specific effluent discharge

limitations. Obviously, the permit-issuing authority cannot allow

a company to maintain "spare" outfalls or to constantly shift and

redefine outfall locations.’

Atlantic States has ignored the significant concern raised by

Stroh in its Petition that allowing Atlantic States to pursue claims

at an outfall which was never noticed frustrates the second purpose

of notice under the Clean Water Act. That purpose -- allowing

government entities to enforce the Clean Water Act and thereby

avoid a citizen suit -- is particularly significant in this case. At the

time Atlantic States filed its Amended Complaint, Stroh was

working closely with government enforcement agencies to

eliminate potential problems through the permitting process.

(Appendix B, B-19-20) The District Court properly recognized

Sportfishing Alliance v. City of West Sacramento, 904 F.Supp. 792, 799

n. 7, (E.D.Ca. 1995).

2 ‘It is impossible to play a regulatory “shell game” as suggested

by Atlantic States. The WDNR must examine plans and approve “any

modification or alteration of an existing industrial pretreatment facility

which may affect the quality or quantity of the discharge to a sewerage

system.” Wisconsin Administrative Code, Chapter NR 108.02(13)(f);

NR 108.03.

that Atlantic States’ notice never gave the government entities an

opportunity to act:

What is not known is whether Stroh and the

MMSD would have taken additional, different,

and/or quicker steps to resolve these problems at

point source No. 4 had point source No. 4 been

specifically mentioned in Atlantic’s earlier notice.

. . OF in a subsequent notice. Stroh and the

MMSD should have been given that chance.

Atlantic had easy access to all the records of

Stroh’s violations. The imposition on Atlantic to

give specific notice as to violations at another

point source and file an amended complaint was

minimal in light of the important goals that may

~ have been achieved by that notice (i.e., remedy of

the violations and avoidance of a lawsuit.)

(Appendix A, A-13-14)

Thus, the Seventh Circuit has ignored one of the two

ee eS ee

purposes of notice by finding that the "key to notice is to give the

accused company the opportunity to correct the problem”.

(Petition, 13-15; Appendix B, B-10) As this Court recognized in

Hallstrom, the 60 day notice serves two important purposes. The

notice not only gives the alleged violator "an opportunity to bring

itself into compliance with the act" but also "allows government

agencies to take responsibility for enforcing environmental

regulations." Hallstrom, 493 U.S. at 29, citing Gwaltney of

Smithfield, Inc. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49,

60, 108 S.Ct. 376, 383, 98 L.Ed.2d 306 (1987).

Government agencies cannot properly assume this

responsibility when the citizen-plaintiff provides a vague notice:

When the notice is precise, sixty days is none too

much time for an agency to resolve on a course of

action and take necessary steps whether to settle

the matter or bring an enforcement action. But if

the notice is imprecise, and requires the agency to

develop on its own what the scope of the alleged

violations are, then it becomes entirely impractical

for the notice provision to fulfill its purpose in

such a short time period.

California Sportfishing, 905 F.Supp. at 799.

Ill. A single exceedence of one milligram

based upon a faulty laboratory test does

not make a "continuing violator".

In addition to making claims related to MMSD outfalls 3

and 4, Atlantic States asserts in its Brief in Opposition that Stroh

is a “continuing violator" at WDNR outfall 003. (Brief in

Opposition, p. 13-14, n. 3) On November 8, 1988, Atlantic States

sent a 60-day notice of intent to sue to Stroh identifying alleged

exceedences at WDNR outfall 003. DNR outfall 003 is simply a

storm water catch basin in the Stroh parking lot. No process

wastewater is discharged through DNR outfall 003.

In February, 1992, Stroh reported a one milligram per liter

exceedence of its permit limitation for oil and grease at DNR

outfall 003. The laboratory reporting this one milligram

exceedence later admitted a process error in the testing for that

day. The Seventh Circuit would nevertheless allow Atlantic States

to pursue this claim, despite the fact that the only post-complaint

exceedence that has ever been alleged occurred over three years

after the 60-day notice. To reach this result, the Seventh Circuit

has stretched the meaning of “ongoing or intermittent" to an

unreasonable extreme.

The practical impact of the Seventh Circuit’s decision

reaches far beyond this case. Under the Seventh Circuit’s rule, a

company may be labeled as an "ongoing or intermittent" violator,

even if the citizen-plaintiff can show only one post-complaint

exceedence which is of minuscule proportions, which is based

upon a faulty laboratory test on parking lot run-off, and which

comes years after the original notice.

CONCLUSION

The petitioner, Stroh Die Casting Co., respectfully requests

that the Court grant the petition for a writ of certiorari.

Dated at Milwaukee, Wisconsin this 7th day of November,

1997.

Roy E. Wagner

Counsel of Record

John H. Niebler

James J. Carrig

Niebler, Pyzyk & Wagner

N95 W16975 Richfield Way

Menomonee Falls, Wisconsin 53051

10