Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co.

• Decision Date: 03 February 1994
• Docket Number: D,No. 1624,1624
• Citation: 12 F.3d 353
• Parties: , 24 Envtl. L. Rep. 20,234 ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff-Appellant, v. EASTMAN KODAK COMPANY, Defendant-Appellee. ocket 93-7091.
• Court: U.S. Court of Appeals — Second Circuit

Page 353

12 F.3d 353

62 USLW 2394, 24 Envtl. L. Rep. 20,234

ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff-Appellant, v. EASTMAN KODAK COMPANY, Defendant-Appellee.

No. 1624, Docket 93-7091.

United States Court of Appeals Second Circuit.

Argued June 10, 1993.

Decided Dec. 14, 1993.

As Amended Feb. 3, 1994.

Charles M. Tebbutt, Buffalo, NY (Edward Cooper, Allen, Lippes & Shonn, Buffalo, NY, of counsel), for plaintiff-appellant.

Philip H. Gitlen, Albany, NY (Elizabeth M. Morss, Carl F. Patka, Whiteman Osterman & Hanna, Albany, NY, of counsel), for defendant-appellee.

Robert Abrams, Atty. Gen. of the State of New York, Peter Schiff, Deputy Sol. Gen., James A. Sevinsky, Val Washington, Asst. Attys. Gen., Albany, NY, of counsel, for State of New York as amicus curiae.

Michael Axline, Western Environmental Law Clinic, Eugene, OR, Katherine Kennedy, James Simon, National Resources Defense Council, New York City, James R. May, Widener University School of Law Environmental Law Clinic, Wilmington, DE, Matthew McKeown, Joel Morton, David Simonaitis, Jennifer Wright, Law Students, of counsel, for Natural Resources Defense Council, et al. as amicus curiae in support of appellant.

Theodore L. Garrett, Corinne A. Goldstein, Covington & Burling, Washington, DC, David F. Zoll, Sarah M. Brozena, Chemical Mfrs. Ass'n, Robin S. Conrad, Nat. Chamber Litigation Center, Cindy Evans, American Forest and Paper Association, Ellen Siegler, American Petroleum Institute, Washington, DC, of counsel, for Chemical Mfrs. Ass'n, et al. as amicus curiae in support of appellee.

Before: WINTER, McLAUGHLIN, and JACOBS, Circuit Judges.

WINTER, Circuit Judge:

This appeal raises the issue of whether private groups may bring a citizen suit pursuant to Section 505 of the Federal Water Pollution Control Act (commonly known as the Clean Water Act), 33 U.S.C. Sec. 1365, to stop the discharge of pollutants not listed in a valid permit issued pursuant to the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. Sec. 1342 (1988). We hold that the discharge of unlisted pollutants is not unlawful under the CWA. We also hold that private groups may not bring such a suit to enforce New York State environmental regulations.

BACKGROUND

Appellee Eastman Kodak Company ("Kodak") operates an industrial facility in Rochester, New York that discharges wastewater into the Genesee River and Paddy Hill Creek under a State Pollutant Discharge Elimination System ("SPDES") permit issued pursuant to 33 U.S.C. Sec. 1342. Appellant Atlantic States Legal Foundation, Inc. ("Atlantic States") is a not-for-profit environmental group based in Syracuse, New York.

Kodak operates a wastewater treatment plant at its Rochester facility to purify waste produced in the manufacture of photographic supplies and other laboratory chemicals. The purification plant employs a variety of technical processes to filter harmful pollutants before discharge into the Genesee River at the King's Landing discharge point (designated Outfall 001) pursuant to its SPDES permit.

Kodak first received a federal permit in 1975. At that time, the pertinent regulatory On the basis of these disclosures, DEC issued Kodak a SPDES permit, number 000-1643, effective November 1, 1984, establishing specific effluent limitations for approximately 25 pollutants. ¹ The permit also included "action levels" ² for five other pollutants as well as for three of the pollutants for which it had established effluent limits. ³ DEC further required Kodak to conduct a semi-annual scan of "EPA Volatile, Acid and Base/Neutral Fractions and PCB's priority pollutants on a 24-hr. composite sample." In May 1989, Kodak applied to renew the SPDES permit submitting a new Form 2C and ICS, but the 1984 permit will continue to remain in effect until DEC issues a final determination.

scheme was the National Pollutant Discharge Elimination System ("NPDES") that was administered directly by the federal Environmental Protection Agency ("EPA"). Subsequently, 33 U.S.C. Sec. 1342(b), (c) delegated authority to the states to establish their own programs in place of the EPA's. As a result, Kodak applied in July 1979 to renew its permit to the New York State Department of Environmental Conservation ("DEC"). The DEC declined to act on Kodak's renewal application, and Kodak's NPDES permit remained in effect. As part of the pending application for a SPDES permit, in April 1982 Kodak provided the DEC with a Form 2C describing estimated discharges of 164 substances from each of its outfalls. Kodak also submitted an Industrial Chemical Survey ("ICS") disclosing the amounts of certain chemicals used in Kodak's facility and whether they might appear in the plant's wastewater. Although the ICS originally requested information on 144 substances, including some broad classes such as "unspecified metals," the DEC restricted the inquiry to chemicals used in excess of specified minimum levels.

Kodak's SPDES permit contains both "general provisions" and "special reporting requirements" pursuant to EPA policy directives devised to implement the Clean Water Act and to DEC policy directives devised to implement both the Clean Water Act and New York law, N.Y.Envtl.Conserv.Law Sec. 17-0815 (McKinney 1984).

The present action arises out of an ongoing dispute between Atlantic States and Kodak during which Atlantic States has claimed that Kodak both exceeded the effluent limits imposed by its SPDES permit and discharged pollutants for which Kodak had no discharge authorization. The procedural history of this dispute is set out in full in our previous decision, Atlantic States Legal Found., Inc. v. Eastman Kodak Co., 933 F.2d 124 (2d Cir.1991) ("Atlantic States I "), familiarity with which is assumed.

On November 14, 1991, Atlantic States filed the complaint in the instant matter. The complaint alleged that Kodak had violated Sections 301 and 402 of the Clean Water Act, 33 U.S.C. Secs. 1311, 1342, by discharging large quantities of pollutants not listed in its SPDES permit. ⁴ The complaint alleged standing to bring suit under the "citizen After discovery, Atlantic States moved for partial summary judgment as to Kodak's liability in relation to the post-April 1, 1990 ⁵ discharge of one or more of 16 of the 27 pollutants listed in the complaint. The 16 pollutants ⁶ are all listed as toxic chemicals under Section 313(c) of the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Sec. 11023(c). Atlantic States argued that General Provision 1(b) of the SPDES permit and Section 301 of the CWA, 33 U.S.C. Sec. 1311, prohibit absolutely the discharge of any pollutant not specifically authorized under Kodak's SPDES permit. Kodak made a cross-motion for summary judgment on the ground that neither the CWA nor the federal regulations implementing it prohibit discharge of pollutants not specifically assigned effluent limitations in an NPDES or SPDES permit. Kodak further argued that, to the extent the permit may have prohibited discharges of these pollutants, this prohibition is broader than that of the federal NPDES program and therefore not enforceable through a citizen suit under 33 U.S.C. Sec. 1365. On December 28, 1992, the district court denied Atlantic States' motion for partial summary judgment, granted Kodak's cross-motion for summary judgment, and dismissed the case. Atlantic States Legal Found., Inc. v. Eastman Kodak Co., 809 F.Supp. 1040 (W.D.N.Y.1992). Atlantic States appealed from the judgment entered on that order.

suits" provision of the Clean Water Act, 33 U.S.C. Sec. 1365. The CWA authorizes any "person or persons having an interest which is or may be adversely affected," to "commence a civil action on his own behalf against any person ... who is alleged to be in violation of ... an effluent standard or limitation under [the Clean Water Act]" in the district court. 33 U.S.C. Sec. 1365(a), (g). As relief, Atlantic States requested a declaratory judgment as to the alleged violations, an injunction against future violations, authorization for Atlantic States itself to monitor Kodak's wastewater discharges at Kodak's expense for a period of one year after Kodak ceases the alleged violations, copies of all reports and documents filed with EPA or DEC during the same time period, civil penalties of $25,000 per day of violation for each alleged violation, and costs, including attorneys' and witnesses' fees.

DISCUSSION

None of the material facts are in dispute ⁷ and this matter may be properly disposed of by summary judgment.

Atlantic States brought the present action under the citizen suit provision of Section 505, which permits private suits to enforce a CWA "effluent standard or limitation." 33 U.S.C. Sec. 1365(a)(1)(A). Section 505 defines such an enforceable standard or limitation as, inter alia, "an unlawful act under ... section 1311," and "a permit or condition thereof issued under section 1342 of this title, which is in effect under this chapter." 33 U.S.C. Sec. 1365(f)(1), (6). The question then is whether Atlantic States' action seeks to enforce an "effluent standard or limitation" imposed

by the Act or by Kodak's SPDES permit issued by the DEC.

A. "Standards and Limitations" of the Clean Water Act

Atlantic States argues first that the plain language of Section 301 of the CWA, 33 U.S.C. Sec. 1311, prohibits the discharge of any pollutants not expressly permitted. With regard to this claim, therefore, Atlantic States' standing to bring this action turns on the merits of the action itself.

Section 301(a) reads: "Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful." This prohibition is tempered, however, by a self-referential host of exceptions that allow the discharge of many pollutants once a polluter has complied with the regulatory program of the CWA. The exception relevant to the instant matter is contained in Section...