897 F.2d 1128 (11th Cir. 1990), 89-7232, Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc.

Docket Nº:89-7232.
Citation:897 F.2d 1128
Party Name:ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff-Appellant, v. TYSON FOODS, INC., Defendant-Appellee.
Case Date:April 05, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1128

897 F.2d 1128 (11th Cir. 1990)

ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff-Appellant,

v.

TYSON FOODS, INC., Defendant-Appellee.

No. 89-7232.

United States Court of Appeals, Eleventh Circuit

April 5, 1990

Page 1129

David H. Pope, Eric E. Huber, Carr, Tabb & Pope, Atlanta, Ga., and Clyde E.

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Riley, Trimmer & Associates, P.C., Birmingham, Ala., for plaintiff-appellant.

Nancy K. Stoner, U.S. Dept. of Justice, Washington, D.C., amicus curiae.

H. Thomas Wells, Jr., Alfred F. Smith, Jr., Maynard, Cooper, Frierson & Gale, Birmingham, Ala., and Michael H. Mashburn, Mashburn & Taylor, Fayetteville, Ariz., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

This case arises out of violations by Tyson Foods, Inc. ("Tyson"), between May of 1986 and February of 1988, of the limitations on discharges of pollutants from its poultry processing plant in Blountsville, Alabama, as set out in its National Pollution Discharge Elimination System ("NPDES") permits. Plaintiff-appellant, the Atlantic States Legal Foundation, Inc. ("ASLF"), appeals from the district court's entry of summary judgment in favor of Tyson on the grounds that the court erred in dismissing the suit as moot and in refusing to award penalties. The district court held that the Supreme Court's decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) required it to dismiss as moot a citizen suit seeking relief for violations which, although occurring before and after filing of suit, had ceased at the time of defendant's motion for summary judgment. Alternatively, the court held that its equitable powers allowed it to deny relief in the form of civil penalties where the defendants had made a good faith effort at compliance. Because we find that the district court erred in dismissing the suit and refusing to award penalties, we reverse and remand.

I.

In May of 1986, Tyson acquired several poultry processing plants in Alabama when it bought Lane Processing, Inc. out of bankruptcy. Lane owned Spring Valley Foods ("Spring Valley"), which operated a processing plant in Blountsville, Alabama. Spring Valley discharged various pollutants into the Locust Fork of the Warrior River in Alabama by way of Posey Creek and Graves Creek. These discharges were regulated by section 402 of the Federal Water Pollution Control Act (hereinafter "the Clean Water Act"), 33 U.S.C. Sec. 1342, which authorizes the administrator of the EPA ("Administrator") to issue NPDES permits allowing the discharge of pollutants into navigable waters in accordance with specified conditions. Under section 402(b) of the Act, a state may establish and administer its own permit program. If that program conforms to federal guidelines and is approved by the Administrator, the issuance of federal permits is suspended. In the instant case, Spring Valley's discharge of pollutants was regulated by a permit issued by the Alabama Department of Environmental Management ("ADEM") in accordance with the state's federally approved NPDES program. 1

Section 308 of the Clean Water Act also requires plant operators to maintain and file Discharge Monitoring Reports ("DMRs") with appropriate authorities which reflect the terms of their NPDES permits and the amount of actual discharges. The DMRs for the Blountsville plant were filed with the ADEM.

The DMRs filed by Spring Valley prior to Tyson's acquisition of the plant demonstrate that Spring Valley had committed continuous and daily violations of its NPDES permit. John Reid, an employee of Tyson, stated in an affidavit that at the time Tyson acquired Spring Valley, the water treatment system was "both inadequate and in a poor state of repair."

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After acquiring Spring Valley, Tyson did not shut down the plant in order to upgrade its water treatment system, but continued the plant's operation. Indeed, one Tyson employee stated that Tyson increased its volume of production by adding a second shift of workers. 2 Tyson did, however, begin taking steps towards improving the system in order to bring it into compliance with the Clean Water Act. By January of 1987, eight months after acquisition, it had completed a "Final Design Summary of Waste Water Treatment Facilities."

In April of 1987, ASLF, a membership organization devoted to environmental and clean water issues, sent to Tyson and appropriate government agencies, a sixty-day notice letter as required by section 505(b) of the Clean Water Act, 33 U.S.C. Sec. 1365(b), stating its intention to commence a citizen suit under the Clean Water Act. 3 The purpose of giving notice to an alleged violator "is to give it an opportunity to bring itself into compliance with the Act and thus likewise render unnecessary a citizen suit." Gwaltney, 484 U.S. at 60, 108 S.Ct. at 382-83. 4 As Tyson's permit violations continued, ASLF filed a complaint against Tyson on August 7, 1987, seeking injunctive relief and civil penalties payable to the United States Treasury, 5 as well as attorney's fees and costs.

On September 2, 1987, Tyson responded with a motion to dismiss for lack of standing and a motion to stay discovery on the merits until the standing issue was resolved. Before ASLF responded to the motion, the district court granted Tyson's motion to stay discovery and excused Tyson from answering ASLF's complaint or responding to its discovery requests. Tyson was allowed to conduct discovery of ASLF and its members.

In December of 1987, the Supreme Court decided Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), in which it interpreted the jurisdictional requirements of the Clean Water Act's citizen suit provisions. ASLF filed an amended complaint to conform to the Gwaltney requirements for invoking the jurisdiction of the court. 6 On March 4, 1988, the district court issued an order in which it found that ASLF had standing to maintain an action against Tyson. Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 682 F.Supp. 1186 (N.D.Ala.1988).

In the same order, the court, citing to Gwaltney, decided sua sponte to stay the proceedings "until such time as the effectiveness of the upgraded wastewater facility

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at Tyson's Blountsville plant can be evaluated." 682 F.Supp. at 1190. The court reasoned that "[w]hen the pollution has ceased, the action is moot and it is doubtful whether civil penalties may be recovered in such a case." Id. The court noted that the affidavit of Tyson's plant manager stated that Tyson already had spent $2.5 million upgrading the wastewater facility at the plant and opined that "when fully completed, the upgraded system should eliminate violations of Tyson's permit limits at that plant." Id. The court concluded that "it appears likely that [the complaint] will be rendered moot when that upgraded system is fully operational." Id. Tyson was excused from responding to ASLF's complaint until thirty days after the stay was lifted.

In May of 1988, Tyson filed a "Suggestion of Mootness" as to ASLF's complaint, stating that its wastewater treatment facility, which had been placed in initial operation on December 17, 1987, had become fully operational in mid-February of 1988 and that it had not exceeded its NPDES permit limitations for any pollutant since that time. On July 29, 1988, pursuant to ASLF's request, the district court lifted the stay of proceedings entered March 4, 1988 and the stay of discovery entered in September of 1987. 7

In November of 1988, both sides filed motions for summary judgment. At the time the motions were filed, it was clear that Tyson had violated its permit limits for twenty-one months: from May of 1986, when it took over plant operations from Spring Valley, until mid-February of 1988, when its newly constructed wastewater treatment facility became fully operational. 8 The violations were self-reported in DMRs filed by Tyson as required by statute.

ASLF filed its complaint in August of 1987. Thus, the violations occurred for fifteen months preceding ASLF's filing of the complaint and for six months afterwards. According to ASLF, Tyson had 57 daily and 16 monthly pre-complaint violations and 34 daily and 8 monthly post-complaint violations. 9 Thus, at the time of the summary judgment motion, ASLF sought civil penalties for a total of 91 daily and 24 monthly violations.

The district court ruled on the cross motions for summary judgment in March of 1989, approximately 19 months after ASLF had filed its complaint. At that time, Tyson had been in compliance for a little over one year. The court granted summary judgment in favor of Tyson and denied ASLF's motion for summary judgment.

II.

The question before us is whether the district court erred as a matter of law in holding that ASLF's claim for civil penalties became moot once Tyson came into compliance and injunctive relief was no longer appropriate. In addition, we must rule on the district court's alternative holding that even if the suit was not moot, the court, based on its equitable powers, would refuse to award penalties because of the efforts of the defendant to comply and the plaintiff's lack of due diligence in investigation. We address this alternative holding in Part III below.

The district court's holding that ASLF's suit was rendered moot by Tyson's compliance was based largely on its reading of the Supreme Court's holding in Gwaltney. It is important to note, however, that Gwaltney dealt primarily with the question of jurisdiction and not mootness. Indeed,

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the Gwaltney court's...

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