Arkansas Wildlife Federation v. Bekaert Corp.

• Decision Date: 13 April 1992
• Docket Number: Civ. No. 91-2203.
• Citation: 791 F. Supp. 769
• Parties: ARKANSAS WILDLIFE FEDERATION, Plaintiff, v. BEKAERT CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Arkansas

791 F. Supp. 769

ARKANSAS WILDLIFE FEDERATION, Plaintiff, v. BEKAERT CORPORATION, Defendant.

Civ. No. 91-2203.

United States District Court, W.D. Arkansas, Fort Smith Division.

April 13, 1992.

Samuel E. Ledbetter, Nichols, Wolff & Ledbetter, Little Rock, Ark., James M. Hecker, Trial Lawyers for Public Justice, Washington, D.C., for plaintiff.

Randolph C. Jackson, Jones, Gilbreath, Jackson & Moll, Paul L. Giuffre, Fort Smith, Ark., for defendant.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

This action is a citizen suit brought by the Arkansas Wildlife Federation, a not-for-profit corporation, on behalf of its members against Bekaert Corporation pursuant to section 505 of the Federal Water Pollution Control Act, hereinafter the Clean Water Act, 33 U.S.C. § 1365. Plaintiff seeks a declaratory judgment, injunctive relief, and the imposition of civil penalties.

Plaintiff has alleged a series of repeated violations of the effluent limitations of the defendant's National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. § 1311(a). In addition to the discharge violations plaintiff has alleged violations of the monitoring and reporting requirements of the NPDES permit. 33 U.S.C. §§ 1318(a), 1342.

The allegations of the complaint concern the defendant's facility located in Van Buren, Arkansas. The Van Buren facility has a NPDES permit allowing it to discharge wastewater and stormwater into the Arkansas River in segment 34 of the Arkansas River Basin. The permit authorizes the discharge of specified quantities of pollutants from two point sources designated as outfalls 001 and 002. Outfall 001 primarily discharges treated wastewater while outfall 002 primarily discharges non-process stormwater runoff. Affidavit of Vince Blubaugh at 2.

On December 10, 1982, the administrator of the Environmental Protection Agency (EPA) issued to defendant NPDES permit number AR0036552. This permit was effective from January 20, 1983, through January 19, 1988. The permit set forth discharge limitations, monitoring, and reporting requirements for outfalls 001 and 002. The applicable regulations state that a permit remains in effect until the effective date of a new permit. 40 C.F.R. § 122.6.

The Administrator of the EPA authorized the Arkansas Department of Pollution Control and Ecology (ADPC & E) pursuant to 33 U.S.C. § 1342(a)(2) to issue NPDES permits on November 1, 1986. 51 Fed.Reg. 44518 (Dec. 10, 1986). The applicable Arkansas law is the Arkansas Water and Air Pollution Control Act, Ark.Code Ann. § 8-4-101 et seq.

Pursuant to its delegated authority the ADPC & E issued NPDES permit number AR0036552 to the defendant on July 29, 1988, to be effective from September 1, 1988, through August 31, 1993. The 1988 permit set forth new discharge limitations for outfalls 001 and 002. The permit also contained provisions regarding permit compliance, monitoring, and reporting requirements.

In response to plaintiff's interrogatories the defendant identified 127 instances in which it exceeded permit limitations between October 1, 1986, and September 17, 1991. The plaintiff identified with reference to defendant's Discharge Monitoring Reports (DMR) and laboratory records specific violations of the permit limitations and/or requirements. The most recent alleged violation occurred on October 24, 1991, after this suit was filed.

Neither the EPA or the state of Arkansas has filed a judicial action concerning the violations alleged by the plaintiff. However, the EPA has issued a series of seven compliance orders pursuant to its administrative enforcement powers. 33 U.S.C. § 1319(a). The last compliance order was issued on February 24, 1992.

Plaintiff provided the requisite notice of the commencement of a civil action on July 2, 1991. 33 U.S.C. § 1365. This action was commenced on September 26, 1991. Plaintiff has alleged continuous violations of the permit requirements. Plaintiff alleges its members have used the waters and nearby areas downstream from defendant's discharge, including the Arkansas River, for fishing, boating, hunting, trapping and nature study. It is alleged that they have contacted the water and eaten fish caught in the Arkansas River.

This matter is currently before the court on the parties' cross motions for summary judgment and the plaintiff's motion for a preliminary injunction and permanent injunctive relief. The court will address the issues raised in turn.

Preclusive Effect of § 1319(g)(6)(A).

As a preliminary matter defendant argues this suit is barred by Section 1319(g)(6)(A). Defendant contends the 1987 amendment to the Clean Water Act bars any citizen suit claims premised upon either past or continuing NPDES permit violations where the EPA has already initiated an administrative compliance order under Section 309 of the Act, 33 U.S.C. § 1319.

The Clean Water Act, 33 U.S.C. § 1251 et seq., was enacted "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act makes unlawful the discharge of any pollutant into navigable waters except as authorized by specified sections of the Act. 33 U.S.C. § 1311(a). One of the statutory exceptions allows for issuance of NPDES permits, 33 U.S.C. § 1342(a), authorizing the discharge of pollutants in accordance with specified conditions of the permit.

A permit holder is subject to both federal and state enforcement action for failure to comply with the conditions of the permit. 33 U.S.C. §§ 1319, 1342. Under the Act, citizens are permitted to commence civil actions against any person "alleged to be in violation of" the conditions of a NPDES permit. 33 U.S.C. § 1365(a)(1). A "citizen suit is meant to supplement rather than to supplant governmental action." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The Act specifically provides that statutory and common law rights are not restricted. 33 U.S.C. § 1365(f); United States EPA. v. Green Forest, 921 F.2d 1394, 1399 (8th Cir.1990), cert. denied, ___ U.S. ___, 112 S.Ct. 414, 116 L.Ed.2d 435 (1991).

The Act bars a citizen suit if it would duplicate court proceedings initiated by either a federal or state entity. 33 U.S.C. § 1365. Section 1365 precludes an action "if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order...." 33 U.S.C. § 1365(b)(1)(B). However, the section further provides that in any such action "any citizen may intervene as a matter of right." Id.

In 1987, Congress amended § 1365(a) by providing an additional preclusion provision, 33 U.S.C. § 1319(g)(6). This is the provision that is at issue here. The 1987 amendments added subsection (g) which authorizes the EPA to assess administrative penalties. 33 U.S.C. § 1319(g). Subsection (g)(6)(A)(i) precludes a citizen suit for civil penalties regarding any violation "with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this section." 33 U.S.C. § 1319(g)(6)(A)(i). In its entirety subsection (g)(6) provides:

(6) Effect of order

(A) Limitation on actions under other sections

Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Administrator's or Secretary's authority to enforce any provision of this chapter; except that any violation —

(i) with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this subsection,

(ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or

(iii) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be,

shall not be the subject of a civil penalty action under subsection (d) of this section or section 1321(b) of this title or section 1365 of this title.

(B) Applicability of limitation with respect to citizen suits

The limitations contained in subparagraph (A) on civil penalty actions under section 1365 of this title shall not apply with respect to any violation for which —

(i) a civil action under section 1365(a)(1) of this title has been filed prior to commencement of an action under this subsection, or

(ii) notice of an alleged violation of section 1365(a)(1) of this title has been given in accordance with section 1365(b)(1)(A) of this title prior to commencement of an action under this subsection and an action under section 1365(a)(1) of this title with respect to such alleged violation is filed before the 120th day after the date on which such notice is given.

In contrast to the § 1365 limitation, the subsection (g)(6) preclusion does not apply if the EPA commences an administrative action after the plaintiff gives notice of the alleged violation pursuant to section 1365(a)(1). 33 U.S.C. § 1319(g)(6)(B)(ii).

In the present case the EPA has issued a series of administrative compliance orders pursuant to 33 U.S.C. § 1319(a). Several of the orders contain the following or substantially similar language:

Issuance of this Order does not preclude the pursuit of additional enforcement action including additional administrative penalty orders, and/or civil or criminal judicial actions for the violations cited herein. Failure to reach a satisfactory solution to this matter at the meeting referenced under the ORDER portion of this document will result in an EPA administrative penalty or referral to the U.S. Department of Justice for judicial action with monetary fines.

Defendant argues that this suit is barred by § 1319(g)(6) because the EPA's enforcement actions have been timely and...