Atlantic States Legal Foundation v. Universal Tool

• Decision Date: 23 April 1990
• Docket Number: Civ. No. F 87-95.
• Citation: 735 F. Supp. 1404
• Parties: ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff, v. UNIVERSAL TOOL & STAMPING CO., INC., Defendant.
• Court: U.S. District Court — Northern District of Indiana

735 F. Supp. 1404

ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff, v. UNIVERSAL TOOL & STAMPING CO., INC., Defendant.

Civ. No. F 87-95.

United States District Court, N.D. Indiana, Fort Wayne Division.

April 23, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Peter G. Mallers, II, Beers, Mallers, Backs & Salin, Fort Wayne, Ind., Richard J. Kilsheimer; Kaplan, Kilsheimer & Foley, New York City, for plaintiff.

Milford M. Miller, Edward J. Liptak, Livington, Dildine, Haynie & Yoder, Fort Wayne, Ind., for defendant.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendant's motion for summary judgment filed on September 15, 1988 and plaintiff's motion for partial summary judgment filed on September 23, 1988. On November 10, 1988 the defendant responded to the plaintiff's motion for partial summary judgment and on November 14, 1988 the plaintiff responded to defendant's motion for summary judgment. A hearing was held on the motions on August 23, 1989. On January 29, 1990 plaintiff filed a supplemental submission in support of motion for partial summary judgment and in opposition to defendant's motion for summary judgment. Also on January 29, 1990 the defendant filed a supplemental affidavit in support of motion for summary judgment. On February 27, 1990 the defendant responded to plaintiff's supplemental submission and on March 2, 1990 the plaintiff responded to defendant's supplemental submission.

Summary Judgment

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the nonmoving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id., 106 S.Ct. at 2512; In re Matter of Wildman, 859 F.2d 553, 557 (7th Cir.1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Tp. High School Dist. No. 204, 802 F.2d 981, 986 (7th Cir. 1986).

Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact, Celotex, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 106 S.Ct. at 2511.

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 106 S.Ct. at 2512.

Factual Background

Plaintiff, Atlantic States Legal Foundation, Inc. (Atlantic)¹, has brought a citizen's suit under § 505 of the Clean Water Act, 33 U.S.C. § 1365, against Universal Tool & Stamping Co., Inc. (Universal) alleging that Universal has repeatedly violated the terms and conditions of its National Pollutant Discharge Elimination System (NPDES) permit under circumstances warranting the imposition of civil penalties and the award of attorney fees and costs.

Universal operates a manufacturing plant which is located on U.S. Route 6 just west of the municipal limits of the City of Butler in DeKalb County, Indiana. Universal manufactures jacks for the automobile industry. The manufacturing process involves machining bar and flat stock steel which is then protected from corrosion by a process of phosphating and painting and by zinc plating with a decorative chrome chemical coating.

Universal received its first NPDES permit in 1975 and has had several since that time. The permit which is the basis of this lawsuit became effective on April 28, 1984² and was to expire on February 28, 1989. This permit authorized Universal to discharge wastewater containing limited quantities of pollutants from outfalls³ 001 and 101 into the Teutsch Ditch⁴. At outfall 101 the wastewaters that Universal discharged into Teutsch Ditch from its phosphating, painting, zinc plating and chrome coating manufacturing procedures were monitored after the wastewaters had passed through Universal's wastewater treatment facility. These waters then combined with wastewaters which had moved through the manufacturing system as noncontact cooling waters. Just before entry of these combined waters into Teutsch Ditch, the wastewater was monitored at outfall 001. Under its permit, defendant was required to establish and maintain records, install, use and maintain monitoring equipment, sample effluents, and report⁵ on a monthly basis to the state of Indiana regarding defendant's discharge of pollutants.

From the inception of its April 1984 permit, Universal had difficulty achieving continuous compliance with its permit. In January 1985, Universal received a Notice of Violation from the State of Indiana for violations of its NPDES permit requiring that Universal's processes for wastewater treatment be reviewed. Universal submitted a proposal to the State involving a series of tasks which it was believed would bring Universal back into compliance with its NPDES permit by June 30, 1985. However, continuous compliance with the NPDES permit was not achieved; and, on September 20, 1985, the State of Indiana issued an Order of Compliance issued for violations of Indiana Stream Pollution Control Board Rule 330 IAC 5 (since amended), which provided for a penalty of up to $25,000.00 per day per violation. On May 15, 1986, the State advised Universal of the results of a compliance sampling survey which the State had conducted on January 21-22, 1986. The results showed that the revisions made by Universal to its system had failed to bring about full compliance and a different approach was needed.

Having failed to achieve full compliance with its NPDES permit utilizing the recommendations of its Certified Waste Treatment Operator, Universal sought the help of an environmental engineer, Scott O. Lougheed, in June of 1986. Mr. Lougheed was hired to undertake an extensive study of Universal's manufacturing processes and wastewater treatment system so as to plan whatever was needed to obtain continuous, uninterrupted compliance with the 1984 NPDES permit. This effort, referred to as a Plant Assessment, was already underway when, on or about September 15, 1986, Atlantic gave notice to Universal of violations of its NPDES permit and of plaintiff's intent to file suit⁶. Atlantic commenced this action on or about April 9, 1987⁷.

As part of Universal's response to the State's initial enforcement action, an Interlocutory Consent Decree was entered into between Universal and the State on November 14, 1986. Following an exchange of information, continued negotiation and agreements as to further compliance schedule dates, Universal and the State entered into a Final Consent Order which was adopted on July 13, 1987. The Final Consent Order provided, among other things, that it was subject to being set aside upon successful petition by interested persons. Notice of publication was given in Marion County and DeKalb County, and a copy was given to Atlantic's counsel. The Final Consent Order, which provides for $40,000.00 in fines, with $30,000.00 thereof being waived upon successful and timely completion of designated tasks, established a sequence of tasks which were to culminate with Universal's new wastewater treatment system achieving effective, continuous and uninterrupted compliance with its NPDES permit on or before September 1, 1988.

Universal's Motion for Summary Judgment

Universal claims that the compliance specified by the Final Consent Order has been achieved and that no violations of the interim permit limits...