Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., 1055
| Decision Date | 14 May 1991 |
| Docket Number | No. 1055,D,1055 |
| Citation | 933 F.2d 124 |
| Parties | , 59 USLW 2701, 21 Envtl. L. Rep. 21,047 ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff-Appellant, v. EASTMAN KODAK COMPANY, Defendant-Appellee. ocket 90-7931. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles M. Tebbutt, Buffalo, N.Y. (Allen, Lippes & Shonn, Buffalo, N.Y., Alan J. Knauf, Pittsford, N.Y., of counsel), for plaintiff-appellant.
Philip H. Gitlen, Albany, N.Y. (Kathryn Girardat Hart, Whiteman, Osterman & Hanna, Albany, N.Y., of counsel), for defendant-appellee.
Before PIERCE, WINTER and WALKER, Circuit Judges.
This appeal presents the question of whether a properly commenced citizen suit under the Clean Water Act may continue after the citizen suit defendant and the appropriate state officials have reached a settlement regarding the Clean Water Act violations in issue. We hold that a citizen suit cannot proceed solely for the purpose of challenging the terms of a settlement reached by state officials so long as the settlement reasonably assures that the violations alleged in the citizen suit have ceased and will not recur. We also hold, however, that a plaintiff in a properly commenced citizen suit that is terminated because of such a settlement may be entitled to an award of attorneys' fees as a prevailing party. We vacate and remand for further proceedings consistent with this opinion.
Appellee, Eastman Kodak Company ("Kodak"), operates an industrial facility in Rochester, New York that discharges wastewater into the Genesee River and Paddy Hill Creek pursuant to a state regulatory permit. Appellant, Atlantic States Legal Foundation, Inc. ("Atlantic States"), is a not-for-profit environmental group based in Syracuse, New York with members residing in the Rochester area who claim to be affected by Kodak's discharges. 1
On April 17, 1989, Atlantic States informed Kodak, the New York Department of Environmental Conservation ("DEC") and the United States Environmental Protection Agency ("EPA") that it intended to sue Kodak for violating the terms of its regulatory permit. No state or federal agency commenced an action against Kodak for the alleged violations within the statutory sixty-day period, see 33 U.S.C. Sec. 1365(b)(1), or at any time before Atlantic States filed the complaint in the instant matter on August 11, 1989. That complaint was based on Section 505 of the Federal Water Pollution Control Act ("Clean Water Act" or "Act"), 33 U.S.C. Sec. 1365 (1988), which authorizes "citizen suits" against persons who are alleged to be in violation of an "effluent standard" or other limitation on the discharge of regulated Based on these reports, the complaint alleged that Kodak "has violated its permit limitations" and "continues to do so." See Complaint p 13. As relief, Atlantic States sought a declaratory judgment as to past and ongoing permit violations; an injunction against future violations; an order authorizing Atlantic States to test Kodak's discharges for one year at Kodak's expense; an order requiring Kodak, for a one-year period, to disclose to Atlantic States any report or document submitted by Kodak to the EPA or to the DEC regarding its permit; civil penalties in the maximum statutory amount; and attorneys' fees and costs as authorized by the Act.
pollutants. 2 The gravamen of Atlantic States's complaint was that the DEC issued an effluent discharge permit to Kodak pursuant to Section 402(b) of the Act, 33 U.S.C. Sec. 1342(b), and that Kodak violated that permit by discharging pollutants into the Genesee River and Paddy Hill Creek in quantities exceeding permitted levels. Section 308 of the Act, 33 U.S.C. Sec. 1318, requires all permittees to keep records of their discharges, to install, use and maintain proper monitoring equipment, to take samples of effluents, and to file regular reports with state regulators. Kodak thus has submitted monthly reports to the DEC for the period of March 1, 1987 to May 31, 1989. According to Atlantic States, these reports reveal at least twenty-seven permit violations over that twenty-five-month period, including excessive discharges of cyanide, xylene, suspended solids, methylene chloride, lead, zinc, nickel, silver, cadmium, dichloropropane and chloroform
On March 12, 1990, Atlantic States again contacted Kodak, the DEC and the EPA and again announced an intention to sue. This second notice accused Kodak of discharging pollutants in excess of permitted amounts and also of discharging pollutants for which Kodak had no discharge authorization at all. However, on April 5, 1990, after several months of private negotiations, Kodak and the DEC entered into a civil consent order "in full settlement of all civil and administrative claims and liabilities that might have been asserted by the [DEC] against Kodak ... for any violations ... that occurred at [the Rochester facility] prior to the effective date of this Order." Under the terms of that order, Kodak agreed to pay a penalty of $1 million, $200,000 of which was allocated to water pollution violations at the Rochester facility and another $200,000 of which was allocated to other violations of its permit. Kodak also agreed that it would submit a report to the DEC summarizing the history of its operations in Rochester; prepare and submit a management practices code in order to enhance public awareness of the dangers associated with the facility and inform the public of plans for responding to spills or excess releases; pay for the costs of on-site monitoring by state employees; and submit to a comprehensive environmental audit.
On the same day that Kodak reached this civil settlement, it also entered into a criminal plea agreement with state authorities pursuant to which it pleaded guilty to a two-count misdemeanor complaint in Rochester City Court. Under the agreement, Kodak admitted to one count of unlawful dealing in hazardous wastes and another count of failing to notify the DEC of excessive releases in a timely fashion. In addition, the company agreed to pay a fine totalling $1 million and to provide $150,000 in support for local emergency planning committees. In exchange, the state released Kodak from further criminal liability and waived its right to additional penalties for pre-April 5, 1990 environmental violations at the Rochester facility.
Atlantic States nevertheless sent a third notice of intent to sue on May 25, 1990. This third notice reiterated the allegations set forth in the March 12 letter, and added more allegations about...
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