Arkansas Wildlife Federation v. ICI Americas, Inc., 93-2181

• Decision Date: 12 August 1994
• Docket Number: No. 93-2181,93-2181
• Citation: 29 F.3d 376
• Parties: , 24 Envtl. L. Rep. 21,573 ARKANSAS WILDLIFE FEDERATION, Appellant, v. ICI AMERICAS, INC., Appellee. United States of America, Amicus Curiae. Arkansas Environmental Federation; Associated Industries of Arkansas, Inc.; American Iron and Steel Institute; The American Petroleum Institute; The Chamber of Commerce of the United States; National Agricultural Chemicals Association; Acme Metals, Incorporated; Chevron Corp.; GAF Corporation; General Electric Company; Hoechst Celanese Corporation; Murphy Oil USA, Inc.; Owens-Corning Corporation; PMC, Inc.; Sandoz Pharmaceuticals Corporation; Shell Oil Company; Total Petroleum, Inc.; Witco Corporation, Amici Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 376

29 F.3d 376

39 ERC 1122, 24 Envtl. L. Rep. 21,573

ARKANSAS WILDLIFE FEDERATION, Appellant, v. ICI AMERICAS, INC., Appellee.

United States of America, Amicus Curiae.

Arkansas Environmental Federation; Associated Industries of

Arkansas, Inc.; American Iron and Steel Institute; The

American Petroleum Institute; The Chamber of Commerce of

the United States; National Agricultural Chemicals

Association; Acme Metals, Incorporated; Chevron Corp.;

GAF Corporation; General Electric Company; Hoechst

Celanese Corporation; Murphy Oil USA, Inc.; Owens-Corning

Corporation; PMC, Inc.; Sandoz Pharmaceuticals

Corporation; Shell Oil Company; Total Petroleum, Inc.;

Witco Corporation, Amici Curiae.

No. 93-2181.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1993.

Decided July 7, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 12, 1994.

James M. Hecker, Washington, DC, argued (James M. Hecker, Washington, DC, Samuel E. Ledbetter, Little Rock, AR, and Jacqueline M. Warren, New York City, on the brief), for appellant.

James Felix Goodhart, Little Rock, AR, argued, for appellee.

Nancy K. Stoner, Washington, DC, argued (Peter R. Steenland, Jr., Anne H. Shields, Anne S. Almy, Mark R. Haag and David Drelich, Washington, DC, on the brief), for amicus curiae U.S.

Before McMILLIAN, FAGG and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Arkansas Wildlife Federation (AWF) appeals from a final order entered in the United States District Court ¹ for the Eastern District of Arkansas granting summary judgment in favor of ICI Americas Inc. (ICI), and dismissing AWF's action against ICI pursuant to the citizen suit provision of the federal Clean Water Act (CWA), 33 U.S.C. Sec. 1365. Arkansas Wildlife Fed'n v. ICI Americas Inc., 842 F.Supp. 1140 (E.D.Ark.1993). For reversal, AWF argues that the district court erred in holding that (1) AWF's action was jurisdictionally barred under 33 U.S.C. Sec. 1319(g)(6)(A)(ii), (2) the jurisdictional bar applied to all of ICI's past violations of the CWA, and (3) the jurisdictional bar covered claims for declaratory and injunctive relief, as well as civil penalties. For the following reasons, we affirm the order of the district court.

I. Background

ICI operates a herbicide manufacturing plant in North Little Rock, Arkansas. In 1988, ICI received a permit from the Arkansas Department of Pollution Control and Ecology (ADPC & E), under the Federal National Pollutant Discharge Elimination System (NPDES) permit program, for wastewater discharge from three point sources (outfalls 001, 002, 003) into waters that flow to the Arkansas River. Pursuant to 33 U.S.C. Sec. 1342, the United States Environmental Protection Agency (EPA) has delegated authority to the State of Arkansas to issue NPDES permits.

Based upon sampling reports that ICI had submitted to ADPC & E, the agency sent notices to ICI during a period of over two years, from late 1988 to early 1991, informing ICI that it was violating pollutant discharge limits mandated under ICI's NPDES permit. By letter dated February 15, 1991, ADPC & E informed ICI that it was subject to enforcement action under the Arkansas Water and Air Pollution Control Act, Ark.Code Ann. Sec. 8-4-101 et seq., and requested a meeting. At a meeting on March 5, 1991, ICI representatives presented ADPC & E with a compliance action plan. The parties agreed to enter into a Consent Administrative Order (CAO). The CAO, effective April 16, 1991, required ICI to pay a civil penalty of $1,000 and to report on its remedial actions and come into compliance with the effluent limitations under the NPDES permit within thirty days. The CAO alternatively required ICI to submit a report setting forth a revised plan for expeditious compliance if ICI were to anticipate failure to comply by the end of the thirty-day period. The CAO stated that it was in full settlement of the civil penalties for violations specified in the Findings of Fact, which listed some, but not all, of ICI's past violations. On September 9, 1991, ICI and ADPC & E executed a corrected CAO which modified the original CAO by specifically incorporating all of ICI's past violations.

By December of 1991, ICI was not in compliance with the effluent limitations under the NPDES permit. On December 26, 1991, ICI asked ADPC & E to extend the compliance deadline to April 30, 1992. ICI's written request contained a summary of ICI's remedial efforts thus far and alleged a need for more time to investigate sources of zinc contamination. ADPC & E granted the extension and assessed another penalty of $500. In March of 1992, ICI requested a construction permit to lay new piping that would combine the existing three outfalls (001, 002, and 003) into one new outfall (004). ICI represented to ADPC & E that the effluent levels from outfall 004 would fully comply with the limitations under the NPDES permit. ADPC & E granted the construction permit and, on April 30, 1992, issued an amended corrected CAO, which imposed another $500 penalty and required compliance with the NPDES permit by December 15, 1992, except for the zinc limitations.

After completing construction of the new piping, ICI filed for a revised NPDES permit to address the discharge from new outfall 004. Rather than issue a new NPDES permit, ADPC & E issued a second amended CAO, which terminated the existing requirements for outfalls 001, 002, and 003 and imposed sampling and reporting requirements for new outfall 004. ² ICI was again assessed a penalty of $500. This amended CAO, issued in January of 1993, imposed the same effluent limitations as before, except that there was no limitation for zinc levels. It was effective until October 31, 1993, the date on which ICI's NPDES permit would expire.

In the meantime, on July 2, 1991, after the original CAO was issued, but before any of the corrections or amendments to the CAO were issued, AWF gave ICI notice of its intent to file this citizen suit under the CWA. On October 15, 1991, within 120 days of the notice, AWF filed its complaint alleging ICI's ongoing violation of the CWA and seeking civil penalties, declaratory relief, injunctive relief, and the costs of litigation.

On November 5, 1991, ICI moved to dismiss AWF's complaint. The district court denied ICI's motion without prejudice and allowed limited discovery. After further discovery, ICI filed a motion for summary judgment on grounds that AWF's suit was jurisdictionally barred under 33 U.S.C. Sec. 1319(g)(6)(A)(ii) and (iii). ³ AWF opposed the motion and filed cross-motions for summary judgment and for injunctive relief. By order dated April 8, 1993, the district court granted ICI's motion for summary judgment and dismissed AWF's motions as moot. The district court held that AWF's action was jurisdictionally barred because 33 U.S.C. Sec. 1319(g)(6)(A)(ii) precludes citizen suits for violations "with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to [33 U.S.C. Sec. 1319(g) ]." The district court further held that the jurisdictional bar applied to all of ICI's past violations of the CWA and covered claims for declaratory and injunctive relief, as well as civil penalties. Arkansas Wildlife Fed'n v. ICI Americas Inc., 842 F.Supp. 1140 (E.D.Ark.1993). AWF appealed. ⁴

II. Discussion

We review a grant of summary judgment de novo. The question before the district court, and this Court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.1990). In the present case, the facts were not in material dispute. Rather, the district court disposed of the case based upon its determinations of law. We must now decide whether the district court applied correct legal standards on issues which have not previously been presented to this Court.

A. Jurisdictional bar

We must first decide whether, in dismissing AWF's action as jurisdictionally barred, the district court correctly applied the criteria set forth in 33 U.S.C. Sec. 1319(g)(6)(A)(ii) to the facts of the present case. Specifically, the district court concluded that ADPC & E had commenced and was diligently prosecuting an administrative penalty action against ICI under an Arkansas law comparable to 33 U.S.C. Sec. 1319(g). The district court also concluded that the jurisdictional bar applied to all of ICI's past violations, even though the original CAO only referred to some, but not all, past violations, and the correction which incorporated the remaining past violations was made by ADPC & E after AWF gave notice of its intent to file this suit.

AWF first argues that ADPC & E did not "commence" a civil penalty action against ICI by filing the original CAO on April 16, 1991, because, under ADPC & E's own regulations, ADPC & E was required to issue a formal "Notice of Violation" in order to initiate an enforcement action. AWF argues that discussion and issuance of a CAO are intended to precede enforcement actions, not commence them. In support of this argument, AWF notes that none of the usual notice and hearing procedures designed to protect and give access to the public and interested parties are triggered by the execution of a CAO, whereas those procedures would be triggered by the issuance of a formal Notice of Violation.

In response, ICI contends that, according to the applicable state regulations, ADPC & E may commence enforcement proceedings either by issuing a Notice of Violation or by filing a CAO (or other similar administrative pleading) with the Secretary of the ...