791 F.2d 304 (4th Cir. 1986), 85-1873, Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd.

Docket Nº:85-1873.
Citation:791 F.2d 304
Party Name:CHESAPEAKE BAY FOUNDATION, INC.; Natural Resources Defense, Appellees, v. GWALTNEY OF SMITHFIELD, LTD., Appellant, United States of America, Atlantic States Legal Foundation, Connecticut Fund for the Environment, Friends of the Earth, Sierra Club, and Student Public Interest Research Group of New Jersey, Amici Curiae.
Case Date:May 22, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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791 F.2d 304 (4th Cir. 1986)

CHESAPEAKE BAY FOUNDATION, INC.; Natural Resources Defense, Appellees,

v.

GWALTNEY OF SMITHFIELD, LTD., Appellant,

United States of America, Atlantic States Legal Foundation,

Connecticut Fund for the Environment, Friends of the Earth,

Sierra Club, and Student Public Interest Research Group of

New Jersey, Amici Curiae.

No. 85-1873.

United States Court of Appeals, Fourth Circuit

May 22, 1986

Argued Feb. 4, 1986.

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Patrick M. Raher (David J. Hayes, Catherine J. LaCroix, Hogan & Hartson, Washington, D.C., Anthony F. Troy, George A. Somerville, Mays, Valentine, Davenport & Moore, Richmond, Va., on brief), for appellant.

James Thornton, Natural Resources Defense Council, Inc., New York City, and Jeter M. Watson, Chesapeake Bay Foundation, Inc., Ashland, Va., for appellees.

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Joseph E. Lees, Dept. of Justice (F. Henry Habicht II, Asst. Atty. Gen., Nancy B. Fireston and David C. Shilton, Dept. of Justice, Glenn Unterberger, Elizabeth Ojala, Office of Enforcement and Compliance Monitoring, Environmental Protection Agency, Bruce J. Terris, Nathalie V. Black, Washington, D.C., on brief), for amicus curiae.

Before WINTER, Chief Judge, and RUSSELL and SPROUSE, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

Plaintiffs Chesapeake Bay Foundation ("CBF") and National Resources Defense Council ("NRDC") filed a "citizen suit" under section 505 of the Clean Water Act, 33 U.S.C. Sec. 1365, against defendant Gwaltney of Smithfield, Inc. ("Gwaltney"), alleging violations of the pollutant effluent limits contained in Gwaltney's National Pollutant Discharge Elimination System ("NPDES") permit, issued pursuant to section 402 of the Act, 33 U.S.C. Sec. 1342. The district court granted plaintiffs' motion for partial summary judgment on the issue of liability and held a hearing to determine the amount of the civil penalty to be assessed against Gwaltney pursuant to section 309(d) of the Act, 33 U.S.C. Sec. 1319(d). Several months later, Gwaltney filed a motion to dismiss for lack of subject matter jurisdiction, alleging that it had ceased violating its permit prior to plaintiff's filing suit. Gwaltney argued that citizen suits for purely past violations are not permitted under the Act, and that for jurisdiction to lie, the Act requires a defendant to be violating the Act at the time suit is filed. 1

The district court denied the motion to dismiss, holding that citizen suit jurisdiction could lie in the absence of an ongoing violation. It also ruled that Gwaltney was liable for a maximum civil penalty 2 of $6,660,000, but, in view of a variety of factors, adjusted the penalty downward to $1,285,322. 3 Gwaltney appeals, and we affirm.

I.

Plaintiffs are nonprofit corporations dedicated to protecting natural resources. CBF is a regional environmental group with over 19,000 members residing in the Chesapeake Bay area, and NRDC a nationwide environmental group with over 800 of its members residing in Virginia. Gwaltney is a subsidiary of Smithfield Foods, Inc., and is engaged in the business of processing and packing pork products. Smithfield Foods had acquired the Gwaltney plant, which is situated on, and discharges wastewater into, the Pagan River near Smithfield, Virginia, from the ITT-Continental Baking Co. Gwaltney assumed responsibility for wastewater discharge under the NPDES permit as of October 27, 1981; although numerous violations of the permit occurred before that date, only those violations occurring afterward are the subject of this lawsuit.

Jurisdiction over this citizen suit was grounded on Section 505(a) of the Act, 33 U.S.C. Sec. 1365(a), which permits any citizen to commence a civil action against any person alleged to be in violation of an effluent standard or limitation under the Act, in order to enforce the limitation and/or to assess civil penalties for its violation. 4 The

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suit was filed more than sixty days after plaintiffs, in compliance with section 505(b)(1)(A) of the Act, 33 U.S.C. Sec. 1365(b)(1)(A), had given Gwaltney, the Environmental Protection Agency ("EPA") and the Virginia State Water Control Board notice of Gwaltney's violations and of the plaintiffs' intent to file suit.

The violations involved in this case (the responsibility for which is not at issue on appeal) are repeated discharges in excess of Gwaltney's NPDES permit limits for a number of pollutants. 5 That permit fixed both daily and "monthly average" limits for certain named pollutants. The most significant pollutants were chlorine (Cl2 ), for which the last violation occurred in October 1982, and total Kjeldahl nitrogen (TKN), for which the last violation occurred on May 15, 1984. The latter was the last recorded violation for any pollutant and occurred approximately one month before this suit was filed. These violations were reported by Gwaltney itself, as required by law, see 33 U.S.C. Sec. 1318(a)(3)(A); 40 C.F.R. Sec. 122.41(1)(4), in its discharge monitoring reports (DMR's).

Many of the excessive discharges were violations of daily limits for the various pollutants. Others were violations of "monthly average" limits for which measurements are made on the basis of a limited number of samples taken during the month, according to the terms of the NPDES permit. 6 For purposes of assessing civil penalties under 33 U.S.C. Sec. 1319(d), which provides for a maximum penalty of $10,000 per day of a permit violation, the district court treated each monthly average violation as if it were a series of daily violations, one for each day of the month in question. Thus the court found monthly average violations to have occurred in twenty-two different months, for a total of 653 days of violation. 7 In addition, the district court assessed penalties for thirteen violations of daily pollutant limits, giving a grand total of 666 days of violation, 8 and a potential maximum penalty

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of $6,660,000. It then adjusted downward the penalties actually to be imposed and fixed an aggregate penalty of $1,285,322. In making the adjustment, the district court, with the agreement of the parties, used as a guideline the EPA's Civil Penalty Policy, 41 Env't Rep. (BNA) 2991 (Feb. 16, 1984). In accordance with EPA's policy, the court considered such factors as economic benefit derived by Gwaltney from noncompliance, a "gravity" component based on the seriousness of the particular violation, and unwarranted delays in compliance.

II.

A. Subject Matter Jurisdiction

Because it is undisputed that Gwaltney had ceased violating its permit before June 15, 1984, when suit was instituted, Gwaltney contends that the district court lacked jurisdiction over the subject matter of the suit. It argues that the plain language of the Act requires this result, because a defendant, under section 505(a), must be "in violation" of the Act for jurisdiction to attach. 9 Gwaltney interprets this statutory language as requiring a polluter to be violating the Act at the time suit is filed against it. Gwaltney further contends that the structure of the statute and its legislative history limit the role of citizen suits to seeking abatement of ongoing violations and obtaining civil penalties for past violations only when jurisdiction is established by the existence of an ongoing one. We disagree with each of these contentions and hold that the Clean Water Act authorizes citizens, as "private attorneys general," see Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 14 n. 23, 17, 101 S.Ct. 2615, 2623 n. 23, 2624 n. 23, 69 L.Ed.2d 435 (1981), to seek civil penalties for past violations of the Act as well as abatement of ongoing violations.

  1. Statutory Language

    Gwaltney argues that the ordinary meaning of section 505 requires that a defendant

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    be engaged in a violation at the time the complaint against it is filed for jurisdiction to lie. See Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 395 (5 Cir.1985). The Hamker court refused to read "to be in violation" as meaning "to have violated," stating that such an interpretation "obviously strains the grammar of the statute and diverges from its ordinary meaning." Id.

    We respectfully disagree. We do not read the language as encompassing only those situations in which a defendant is currently violating the Act. Rather, we agree with the district court that the language is ambiguous, in that it can be read to comprehend unlawful conduct that occurred only prior to the filing of a lawsuit as well as unlawful conduct that continues into the present. 10 See also Student Public Interest Research Group v. Monsanto Co., 600 F.Supp. 1474, 1476 (D.N.J.1985) ("A plausible construction of the language is that one is 'in violation' and continues to be 'in violation' by having 'violated.' In other words, the taint of a past violation is continuing."). We therefore cannot, as Gwaltney urges, rely on the "plain meaning" of this language in deciding this case. Instead, we look beyond the language itself to the structure of the statute and its legislative history to discern congressional intent as to the scope of citizen suit jurisdiction.

  2. Statutory Structure

    In light of the language of numerous other sections of the Act, Gwaltney's reliance on the words "in violation" to curtail the scope of citizen suits undermines its position. Virtually all of the enforcement provisions of the Act, for citizen and government enforcement alike, employ similar, present-tense phrasing. See, e.g., 33 U.S.C. Sec. 1319(a)(1) (EPA Administrator authorized to take enforcement action, including court action, whenever he "finds that any person is in violation of any condition or limitation...."); id. Sec. 1319(a)(3) (Administrator may issue a compliance order or...

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