Atlantic States Legal Foundation v. Tyson Foods, Civ. A. No. 87-G-1390-S

• Decision Date: 04 March 1988
• Docket Number: 87-PT-1505-E.,Civ. A. No. 87-G-1390-S
• Citation: 682 F. Supp. 1186
• Parties: ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff, v. TYSON FOODS, INC., Defendant (Two Cases).
• Court: U.S. District Court — Northern District of Alabama

682 F. Supp. 1186

ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff, v. TYSON FOODS, INC., Defendant (Two Cases).

Civ. A. Nos. 87-G-1390-S, 87-PT-1505-E.

United States District Court, N.D. Alabama, S.D.

March 4, 1988.

Eugene Rutledge and Clyde Riley, Rutledge & Kelly, Birmingham, Ala., David H. Pope, Carr, Tabb & Pope, Atlanta, Ga., for plaintiff.

H. Thomas Wells, Jr., and Alfred F. Smith, Jr., Maynard, Cooper, Frierson & Gale, P.C., Birmingham, Ala., Mike Mashburn, Fayetteville, Ark., for defendant.

MEMORANDUM OPINION

GUIN, District Judge.

These actions have been consolidated for consideration of the standing issue. The plaintiff in both actions is Atlantic States Legal Foundation, Inc. (hereinafter "ASLF"), which is a non-profit corporation organized under the laws of the State of New York. ASLF is a membership organization dedicated to protecting and restoring the water resources in the states in which it has members. ASLF has members in the State of Alabama whose rights, it alleges, are and will be adversely affected. The defendant in both actions is Tyson Foods, Inc. (hereinafter "Tyson"). Each action is a citizen suit brought pursuant to Section 505 of the Federal Water Pollution Control Act, (hereinafter "Clean Water Act"), 33 U.S.C. § 1365. The question before the court is whether the plaintiff has standing to bring these actions.

Citizen suits are provided for by the Clean Water Act. The pertinent section is 33 U.S.C. § 1365(a) which provides as follows:

Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf—

(As amended February 4, 1987.)

I. SECTION 1319(g)(6) DEPRIVES THE PLAINTIFF OF STANDING TO PROSECUTE CV 86-PT-1505-E.

Tyson argues that 33 U.S.C. § 1319(g)(6) precludes the maintenance of CV 87-PT-1505-E. Section 1319(g)(6) provides in pertinent part as follows:

Any violation—

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

shall not be the subject of a civil penalty action under ... section 1365 of this title.

33 U.S.C. § 1319(g)(6) (as amended February 4, 1987).

"This subsection" refers to section 1319(g) which authorizes the imposition of administrative penalties in appropriate cases. Alabama has a law comparable to that subsection. Section 22-22A-5(18) provides for the imposition of civil penalties by the Alabama Department of Environmental Management (hereinafter "ADEM"). Therefore, the diligent prosecution of an action under Ala. Code § 22-22A-5(18) with respect to the violations in question would operate to remove the plaintiff's standing to bring these actions.

Such an action exists with respect to CV 87-PT-1505-E, which involves Tyson's Heflin plant. The Heflin plant has been the subject of an administrative order issued by ADEM. (A true and correct copy of that order is attached to the affidavit of Ken Nix.) That order involved the same permit involved in CV 87-PT-1505-E. The administrative order required Tyson to begin construction of wastewater treatment facilities sufficient to remove the violations not later than June 15, 1987, and to attain compliance with the terms of the permit not later than December 15, 1987. The order provides that Tyson's failure to comply with its provisions would subject it to the imposition of "civil penalties, criminal fines, or other appropriate relief."

ASLF asserts that the administrative order is insufficient to prevent the maintenance of a citizen suit for any one of three reasons. First, ASLF asserts that the order does not preclude citizen suits arising from violations occurring after November 1986. ASLF argues that the administrative order only dealt with the violations listed in finding of fact number five. Those violations occurred during the period from August through November 1986. However, the administrative order is clearly addressed to future violations of the permit in question. The violations in finding of fact number five are only illustrative of the poor compliance history at the Heflin plant. The order itself is clearly prospective in nature in that it contemplates the construction of additions to the wastewater treatment facilities at the Heflin plant sufficient to bring the plant into compliance, thereby eliminating future violations. It also acknowledges the existence of violations prior to August 1986 by Spring Valley Foods, Inc., the predecessor of Tyson. Therefore, it is clear that the order is intended to address the violations that ASLF seeks to make the subject of its citizen suit.

Second, ASLF argues that the administrative order does not represent a diligent prosecution by ADEM. ASLF argues that the administrative order merely constitutes an extension of an existing deadline. This is, however, not the case. The order requires Tyson to construct a wastewater treatment facility sufficient to bring the plant into compliance with the terms of the permit. Tyson has expended approximately $1.8 million in making the required modifications in its wastewater treatment facilities. (See Ken Nix's affidavit.) The order leaves open the prospect of civil penalties and other appropriate relief in the event Tyson fails to comply with the requirements of the order. In light of the recent purchase of Spring Valley Foods, Inc., by Tyson, the administrative order clearly represents "diligent prosecution" on the part of ADEM. To characterize the administrative order in question as simply an extension of the violator's deadline comes precariously close to constituting a sanctionable violation of Rule 11 of the Federal Rules of Civil Procedure.

The third reason argued by ASLF, and the one it views as the most important, involves the wording of the administrative order itself. ASLF argues that the administrative order itself permits the maintenance of appropriate actions against Tyson. The wording relied on by ASLF is as follows:

The issuance of this order does not preclude the department or others from seeking civil penalties ... against Tyson for the violations stated herein.

This language does not override the language of section 1319(g)(6)(A)(ii). If the State is diligently prosecuting an action under a comparable state law, that section bars a citizen suit. There is no provision for the removal of that bar in the event an administrative order issued by the state agency purports to allow a citizen suit. Section 1319(g)(6) is supreme to any administrative order issued by a state agency. Therefore, even if the administrative order in question is in fact intended to avoid the bar set up by section 1319(g)(6), it can have no such effect.

None of the reasons offered by ASLF for the nonapplication of section 1319(g)(6) as a bar to suit is meritorious. Therefore, with respect to the Heflin plant, the state had commenced and was diligently prosecuting an action under a state law comparable to section 1319(g) at the time CV 87-PT-1505-E was filed. Accordingly, no suit may be brought against Tyson with respect to that plant and the plaintiff is without standing to assert such suit.

At the motion docket, counsel for ASLF cited the court to Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57 (2d Cir.1985), which had held an administrative action insufficient to prevent a citizen suit. Counsel advised the court that the case might be of little precedential value in the instant case because it was decided prior to the enactment of 33 U.S.C. § 1319(g)(6). Counsel's caution to the court was greatly appreciated and his fears well founded. In that case the court was asked to interpret 33 U.S.C. § 1365(b)(1)(B) which provides that no action may be commenced under section 1365 if the state "has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State ..." (emphasis added). The pertinent provision of section 1319(g)(6) speaks only of prosecution of "an action under a State law comparable to this subsection." The crucial phrase "in a court" is not found in section 1319(g)(6). Presumably this evinces an intention on the part of Congress to avoid the result in Consolidated Rail.

In addition, the wording of section 1319(g)(6) is clearly intended to prevent the bringing of a citizen suit if a state administrative action is being diligently prosecuted. Section 1319(g), the subsection referenced, deals with administrative penalties. Therefore, a state administrative action under a similar state law is clearly sufficient, such action being under a state law comparable to subsection (g) of section 1319.

This court's interpretation of section 1319(g)(6) is bolstered by the recent decision of the Supreme Court in Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. ___, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The Court, in support of its conclusion that section 505 of the Clean Water Act did not permit citizen suits for wholly past violations, reasoned as follows:

If citizens could file suit, months or years later, in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator's discretion to enforce the Act in the public interest would be curtailed considerably. The same might be said of the discretion of state enforcement authorities. The allowance of such suits would change the nature of the citizens' role from interstitial to potentially intrusive. We cannot agree that Congress intended such a result.

484 U.S. at ___, 108 S.Ct. at 383, 98 L.Ed. 2d at 319. The same policy considerations strongly support this court's holding. In the instant case, exactly the sort of administrative discretion championed by the Court in Gwaltney is involved. ADEM, in exercising its discretion, required Tyson to make costly changes to its Heflin wastewater facility in lieu of the immediate imposition of fines. This discretion should not be threatened by the risk of...