847 F.2d 1109 (4th Cir. 1988), 87-1600, Sierra Club v. Simkins Industries, Inc.

Docket Nº:87-1600.
Citation:847 F.2d 1109
Party Name:SIERRA CLUB, Plaintiff-Appellee, v. SIMKINS INDUSTRIES, INC., Defendant-Appellant.
Case Date:May 31, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1109

847 F.2d 1109 (4th Cir. 1988)

SIERRA CLUB, Plaintiff-Appellee,

v.

SIMKINS INDUSTRIES, INC., Defendant-Appellant.

No. 87-1600.

United States Court of Appeals, Fourth Circuit

May 31, 1988

Argued Nov. 4, 1987.

Rehearing and Rehearing In Banc Denied July 27, 1988.

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David F. Albright, H. Thomas Howell (Semmes, Bowen & Semmes, Baltimore, Md., on brief), for defendant-appellant.

John F. King (G. Macy Nelson, Anderson, Coe & King, Baltimore, Md., on brief), for plaintiff-appellee.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and BUTZNER, Senior Circuit Judge.

HARRISON L. WINTER, Chief Judge:

Simkins Industries, Inc. (Simkins) appeals from a judgment entered against it in a citizen suit brought by Sierra Club pursuant

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to Sec. 505 of the Clean Water Act, 33 U.S.C. Sec. 1365. The district court held that Simkins was liable under the Clean Water Act for failing to comply with the terms and conditions of Simkins' National Pollutant Discharge Elimination System (NPDES) permit by failing to file quarterly reports from August 1, 1981, to March 31, 1984, Sierra Club v. Simkins Industries, Inc., 617 F.Supp. 1120 (D.Md.1985) (granting partial summary judgment on liability), and assessed civil penalties in the amount of $977,000 ($1,000 per day of violation). Simkins argues on appeal that Clean Water Act citizen suits may not be properly founded on such reporting violations and that citizen-plaintiff Sierra Club has not established a continuing violation within the meaning of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., --- U.S. ----, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). We disagree. We also perceive no merit in Simkins' challenges to Sierra Club's standing; the district court's calculation of civil penalties; and the district court's denial of Simkins' belated motion for recusal. We therefore affirm the district court's judgment on liability and civil penalties. 1

I.

The Clean Water Act (Act), 33 U.S.C. Secs. 1251 et seq. (1982 and West Supp.1988), originated in the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a). Section 301(a) of the Act, 33 U.S.C. Sec. 1311(a), generally prohibits the discharge of pollutants into navigable waters unless the point source has obtained a permit from the Environmental Protection Agency (EPA). Under a procedure established by Congress in Sec. 402 of the Clean Water Act, 33 U.S.C. Sec. 1342, the EPA Administrator may delegate to a state the authority to administer the NPDES program with respect to point sources in that state, and the source state may set more stringent minimum effluent levels supplanting federal standards. A violation of an NPDES permit, whether issued by state or federal officials, is a violation of the Act exposing the permit holder to liability under Sec. 505 of the Act. See Environmental Protection Agency v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976); 33 U.S.C. Sec. 1342(k).

The State of Maryland is authorized by the EPA to administer the NPDES program for point sources in the State of Maryland. In particular, Maryland issues NPDES permits and is empowered to attach certain terms and conditions to these permits, including sampling and reporting requirements. Section 308 of the Clean Water Act, 33 U.S.C. Sec. 1318, provides that recipients of such permits may be required to establish and maintain records, install monitoring equipment, and perform sampling, Sec. 1318(a)(4)(A). It also authorizes the EPA Administrator or his or her authorized representatives a right of entry to an effluent source location or to premises where required records or monitoring equipment are kept, Sec. 1318(a)(4)(B). A citizen suit must allege violation of "an effluent standard or limitation," 33 U.S.C. Sec. 1365(a)(1), defined, inter alia, to mean "a permit or condition thereof issued under section 1342 ...," Sec. 1365(f)(6).

In 1981, the Office of Environmental Programs of the Maryland Department of Health and Mental Hygiene issued Simkins a permit pursuant to 33 U.S.C. Sec. 1342 for

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its paper mill in Catonsville, Maryland, on the bank of the Patapsco River. Simkins' paper mill manufactures cardboard, and in the course of operation Simkins discharges treated waste from its plant into the Patapsco River. See 617 F.Supp. at 1123. The NPDES permit allowing Simkins to discharge this waste was conditioned upon maximum daily and quarterly averages in levels of oil and grease. The permit also required Simkins to monitor at locations near its plant the levels and volume of flow of oil and grease, as well as other effluents such as copper, total organic carbon, and total phenol. The permit required Simkins to sample on a monthly basis and to summarize and file accurate results with the Office of Environmental Programs in quarterly Discharge Monitoring Reports (DMRs). See 40 C.F.R. Secs. 122.41(l )(4)(i); 122.22(b), (d).

It is undisputed that Simkins failed to sample and to file the quarterly DMRs for a period of over two years. The district court heard testimony that the plant manager's supervisor did not regard sampling as a "priority."

The Sierra Club filed its citizen suit on October 31, 1984. It sought declaratory relief, injunctive relief, and civil penalties of $10,000 per day of violation, alleging that Simkins' failure to report constituted a separate violation for each day it occurred. The district court granted Sierra Club's motion for partial summary judgment, and subsequently fixed civil penalties. 2

II.

Simkins challenges Sierra Club's Article III standing to sue as a private attorney general seeking enforcement of the Clean Water Act under the Act's citizen suit provisions, 33 U.S.C. Sec. 1365. In its complaint, Sierra Club alleged that health, recreation, aesthetic, and environmental interests of its members were and were going to be adversely affected by Simkins' failure to comply with the terms and conditions of its NPDES permits. Sierra Club submitted the affidavit of member John Railey attesting to his interest, as one regularly using and enjoying the Patapsco River and surrounding land, in preserving the environmental integrity of the river. 3 Simkins argues that Sierra Club has not shown injury under Article III fairly traceable to Simkins' failure to sample and file DMRs, and that Sierra Club's citizen suit is violative of the Article III requirement that a plaintiff's injury be redressed by the requested relief. We disagree with both contentions.

A.

Sierra Club maintains that its members have been injured by Simkins' reporting violations because they are unable to

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know the full extent of pollution in the river near Simkins' paper mill. Mr Railey's articulated interests include aesthetic and environmental interest which can constitute injury in fact. Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). Of course, Congress' provision for citizens suits does not, in itself, establish Article III standing; Sierra Club must establish that one or more of its members use the Patapsco River and would be adversely affected by its pollution. See Sierra Club v. SCM Corp., 747 F.2d 99, 107 (2 Cir.1984) (to establish standing under Sec. 505 of the Act, Sierra Club required to demonstrate actual injury within the meaning of Morton ).

John Railey's affidavit adequately establishes injury and the threat of future injury, 4 stemming from both Simkins' failure to report concerning harmful effluents for which its permit contained maximum discharge levels and Simkins' failure to report concerning the levels of other effluents for which it was not subject to discharge limitations. As a result of these violations, information on any harmful level of pollutants in the area of Simkins' plant during this time period is forever lost to environmental planners and policymakers and those who might undertake to remedy the effects of any pollution. Moreover, Simkins' failure to report on levels of harmful effluents subject to maximum discharge...

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