Arkansas Wildlife Federation v. ICI Americas Inc.

• Decision Date: 08 April 1993
• Docket Number: No. LR-C-91-681.,LR-C-91-681.
• Citation: 842 F. Supp. 1140
• Parties: ARKANSAS WILDLIFE FEDERATION, Plaintiff, v. ICI AMERICAS INC., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

842 F. Supp. 1140

ARKANSAS WILDLIFE FEDERATION, Plaintiff, v. ICI AMERICAS INC., Defendant.

No. LR-C-91-681.

United States District Court, E.D. Arkansas, W.D.

April 8, 1993.

COPYRIGHT MATERIAL OMITTED

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

Charles R. Nestrud, Chisenhall, Nestrud & Julian, P.A., James Felix Goodhart, Banks, Dodson & Goodhart, Little Rock, AR, for defendant.

James E. Baine, Murphy Oil USA, Inc., El Dorado, AR, Scott M. DuBoff, Winston & Strawn, Washington, DC, for movants.

ORDER

STEPHEN M. REASONER, Chief Judge.

Presently before the Court is Defendant's Motion for Summary Judgment (Document # 26). For the reasons stated herein, the motion is granted and plaintiff's complaint is dismissed.

I. FACTS

On September 30, 1988 the Arkansas Department of Pollution Control & Ecology (ADPC & E) issued Federal National Pollutant Discharge Elimination System (NPDES) Permit No. AR0042901 to defendant, ICI Americas, Inc. (ICI). ICI is engaged in the production of liquid and granular thiocarbamate and organophosphate herbicides. ICI's North Little Rock facility discharges waste-water into the Arkansas River.

During December, 1988 through February, 1991, ADPC & E sent notices to ICI informing it that it had committed violations of various limits contained in its NPDES permit. ADPC & E requested a meeting with ICI by letter dated February 15, 1991, which informed ICI that it was subject to enforcement action under the Arkansas Water and Air Pollution Control Act (AWAPCA). During that meeting, Irvin Wheeler, ICI North Little Rock Plant Manager, and R. Hayes Baber, ICI Quality Control Supervisor, presented Mark Bradley, Enforcement Engineer in the NPDES Enforcement Section, and Joseph Williford, ADPC & E Enforcement Supervisor, NPDES Enforcement Division, with a copy of an ICI NPDES Compliance Project Action Plan dated February 28, 1991. A settlement was reached whereby the parties agreed to execute a Consent Administrative Order (CAO) which required ICI to pay a $1,000 civil penalty and implement the measures in the ICI NPDES Compliance Project Action Plan. The CAO was effective April 16, 1991.

A Corrected CAO was reissued on September 9, 1991. The Corrected CAO reflects that ICI had agreed to pay the $1,000 civil penalty in full settlement of all permit violations occurring up to the date of the Order. It also left open the possibility of future remedies or sanctions by ADPC & E.

On July 2, 1991, plaintiff, Arkansas Wild-life Federation, notified ICI that it intended to file the present lawsuit. Plaintiff filed the Complaint on October 15, 1991, less than 120 days after their notice was given.

On December 26, 1991, ICI filed a Request for Extension of Schedule of Compliance with ADPC & E. The request asked for a continuance of the compliance date to April 30, 1992 so that, according to ICI, it could be allowed to further investigate sources of zinc contamination and make any necessary changes. On December 27, 1991, ADPC & E granted the request as reasonable and required ICI to pay another $500.00 administrative penalty for noncompliances occurring after the date of the Corrected CAO.

On March 13, 1992, ICI requested authorization to lay additional piping to combine certain outfalls into one outfall. ICI represented that by doing so, it could demonstrate compliance with all permit limits. On April 2, 1992, ADPC & E approved ICI's request and issued Construction Permit No. 42901C1. On April 30, 1992, ADPC & E amended the CAO to allow ICI until December 15, 1992 to come into compliance with the terms and conditions of its NPDES Permit. The amendment levied an additional $500.00 in penalties but provided that ICI would not be assessed any additional penalties for the presence of zinc as long as it complied with the terms of the CAO.

On January 7, 1993, ADPC & E and ICI entered into Amendment # 3 (Nunc Pro Tunc) to Corrected Consent Administrative Order. This third amendment states:

Effective on December 15, 1992, and continuing until Oct. 31, 1993, all reporting for Outfalls 001, 002, and 003 shall be terminated and the Permittee will not be required to conduct sampling at these points. Effective on Dec. 15, 1992 and continuing until Oct. 31, 1993, the Permittee shall monitor and report discharge from Outfall 004 as established under Construction Permit No. 42901C1. The discharge limitations for Outfall 004 shall be the same as those specified for Outfall 001 under the existing permit number AR0042901 (Page 1A of Part 1), with the exception of Zinc, Total Recoverable. The requirement for Zinc, Total Recoverable, shall be "report only" for Outfall 004 with this limitation also expiring on Oct. 31, 1993.

The amendment further states that there were no violations of Amendment No. 2 to the CAO. Nevertheless, the amendment required ICI to pay a civil penalty of $500.00 "in compromise and full settlement of any claims for civil penalties."

Defendant has now moved for summary judgment. According to its brief, defendant claims that:

the limitations to citizen suits in section 309(g)(6)(A)(ii) and (iii) of the Clean Water Act, 33 U.S.C. § 1319(g)(6)(A)(ii) and (iii), bar Plaintiff from bringing this action because the Arkansas Department of Pollution Control & Ecology ... has prosecuted an administrative enforcement action against ICI for the same NPDES permit violations pursuant to Arkansas law, which is comparable to the administrative enforcement provisions in the Clean Water Act, and (1) the enforcement action has resulted in the issuance of final orders that are no longer subject to judicial review and the payment of civil penalties by ICI; or alternatively, (2) the enforcement action has been and continues to be diligently prosecuted by the ADPC & E.

DEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT at 2.

II. 33 U.S.C. § 1319(g)(6)(A)(ii) and (iii)

33 U.S.C. § 1319(g)(6)(A) provides in pertinent part that:

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, of 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.

The Court will address defendant's § 1319(g)(6)(A)(ii) argument first.

A. Section 1319(g)(6)(A)(ii)

1. "Commenced" and "Violation"

Defendant states that ADPC & E has "commenced" an action addressing every violation raised by plaintiff. This Court has previously found in the Order of April 23, 1992, that ADPC & E commenced an action by issuing the CAO on April 16, 1991, and sees no reason to disturb that finding. Thus, the remaining issue is whether the CAO and the amendments thereto were intended to cover all violations alleged by plaintiff.

Defendant argues that the language of the Corrected CAO demonstrates that the original CAO was intended to cover all violations occurring to that point. The Corrected CAO states:

In compromise and full settlement of all violations occurring up to and including the date this Order is executed by the Director of the ADPC & E, including those specified in the Findings of Fact, the Permittee agrees to pay to ADPC & E the total sum of One Thousand Dollars ($1,000) as a voluntary civil penalty.

DEFENDANT'S EXHIBIT 8 at 5-6. Apparently, the problem arises from the language of the original CAO which states:

In compromise and full settlement of the civil penalties for violations (specified in the Findings of Fact), the Permittee agrees to pay to ADPC & E the total sum of One Thousand Dollars ($1000) as a voluntary civil penalty.

DEFENDANT'S EXHIBIT # 7 at 4. Plaintiff does not dispute that the Corrected CAO covers all violations up to the date of the order, but points out that Mark Bradley, an Enforcement Engineer in ADPC & E's NPDES Enforcement Section, stated in deposition that ADPC & E had never before corrected a CAO to expand the scope of covered violations. DEFENDANT's EXHIBIT # 5 at 25-26. However, defendant points out that Mr. Bradley also stated it was the department's intent to issue a civil penalty that addressed all past violations dating back to the beginning of the permit. Id. at 13, 35-36. The Court agrees with defendant and finds that the civil penalty assessed in the original CAO was intended to cover all past violations.

Furthermore, the three amendments to the CAO have all assessed civil penalties that purport to cover all violations occurring up to their respective dates of entry. Therefore, in this Court's opinion the action commenced and penalties assessed by ADPC & E do cover all violations of which plaintiff could possibly complain.

2. "Comparability"

Defendant next argues that the provisions in the Arkansas Water and Air Pollution Control Act for assessing administrative penalties are "comparable" to those in 33 U.S.C. § 1319(g).

a. Penalty Provisions

Defendant states that the ADPC & E has been empowered to seek criminal, civil, and administrative penalties against persons who violate any rules, regulations, orders, permits, or plans issued pursuant to the AWAPCA. ARK. CODE ANN. § 8-4-103. Also, the penalty provisions are, according to defendant, generally patterned after those in 33 U.S.C. § 1319. Sections 8-4-103(c...