Carr v. Alta Verde Industries, Inc., No. 89-1991

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, and REAVLEY and KING; KING
Citation931 F.2d 1055
Parties, 21 Envtl. L. Rep. 21,005 Nick CARR, and William H. George, Jr., Plaintiffs-Appellants, v. ALTA VERDE INDUSTRIES, INC., Defendant-Appellee.
Docket NumberNo. 89-1991
Decision Date14 May 1991

Page 1055

931 F.2d 1055
33 ERC 1361, 21 Envtl. L. Rep. 21,005
Nick CARR, and William H. George, Jr., Plaintiffs-Appellants,
v.
ALTA VERDE INDUSTRIES, INC., Defendant-Appellee.
No. 89-1991.
United States Court of Appeals,
Fifth Circuit.
May 14, 1991.
Rehearing Denied Nov. 7, 1991.

Page 1057

Stuart N. Henry, Henry, Kelly & Bunch, Myron J. Hess, Austin, Tex., for plaintiffs-appellants.

Roger James George, Jr., Julie A. Ford, Graves, Dougherty, Hearon & Moody, Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

ON PETITION FOR REHEARING

(Opinion February 8, 1991, 5th Cir., 924 F.2d 558)

Before CLARK, Chief Judge, and REAVLEY and KING, Circuit Judges.

KING, Circuit Judge:

We grant plaintiffs-appellants petition for rehearing, withdraw our opinion reported at 924 F.2d 558, and substitute the following:

The plaintiffs-appellants Nick Carr and William H. George (the plaintiffs) sought civil penalties and injunctive relief for violations of the Federal Water Pollution Control Act, 33 U.S.C. Secs. 1251 et seq., commonly known as the Clean Water Act (the Act), against the defendant-appellee Alta Verde Industries (Alta Verde). 1 After a bench trial, the district court dismissed the suit for lack of standing under Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), reasoning that no violations of the Act had occurred on or since the date of the complaint and no violations were likely in the future because Alta Verde fit within an exception to the National Pollutant Discharge Elimination System (NPDES) permit requirement. Because the Environmental Protection Agency's (EPA) effluent limitations guidelines do not create such an exception to the NPDES permit requirement, we conclude that Alta Verde's failure to obtain a permit amounted to a continuing violation of the Act, and any discharges in the future will amount to intermittent violations. The district court erred, therefore, in concluding that the plaintiffs lacked standing to bring a citizen suit, and we reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Alta Verde is a cattle feedlot with between 20,000 and 30,000 head of cattle and 230.9 acres of land. Waste from the feedlot, primarily cow manure, drains into a wastewater disposal system of six holding ponds. Alta Verde then uses this water to irrigate and fertilize three adjacent fields.

Between April and July, 1987, a series of heavy rains exceeded the capacity of the holding ponds. In early June, Alta Verde cut a spillway out of the embankment of one of the holding ponds and discharged

Page 1058

wastewater into an unnamed tributary of Rosita Creek. Other discharges also may have resulted from the heavy rains in 1987.

The plaintiffs filed suit on December 14, 1987, alleging that Alta Verde's discharges in 1987 without an NPDES permit violated the Act. After a bench trial, the district court dismissed the suit for lack of standing under Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), in which the Supreme Court held that citizens do not have standing to seek civil penalties for wholly past violations of the Act. The district court reasoned that no discharges (and therefore no violations of the Act) had occurred on or since the filing of the complaint. In addition, any discharges that might occur in the future would not be violations of the Act, the district court reasoned, because Alta Verde did not have to obtain an NPDES permit since it met the EPA's effluent limitation guidelines for concentrated animal feeding operations. Any violations that had occurred, according to the district court, were wholly past and the plaintiffs lacked standing to bring suit. The plaintiffs appeal, arguing: (1) that the district court erred in holding that Alta Verde was exempt from the NPDES permit requirement and (2) that the district court erred in holding that Carr and George did not have standing to sue.

We review the district court's factual findings under the clearly erroneous standard and will reject such findings only if our review of the entire record impels the definite and firm conviction that a mistake has been committed. Joseph v. St. Charles Parish School Bd., 736 F.2d 1036, 1038 (5th Cir.1984). We review the district court's conclusions of law de novo.

II. ANALYSIS

A. Permit Requirement

The district court found that Alta Verde met the Act's definition of a point source but concluded that Alta Verde's compliance with the EPA's effluent limitation guidelines for concentrated animal feeding operations excused it from the NPDES permit requirement. The district court erred, the plaintiffs argue, because all feedlots that fit the definition of a point source must comply with the NPDES permit program. In response, Alta Verde does not attempt to support the district court's conclusion that the effluent limitation guidelines provide an exception to the permit requirement. Rather, Alta Verde argues that it does not meet the definition of a point source. 2 We conclude that the district court did not clearly err in finding that Alta Verde is a point source, but improperly concluded that the effluent limitation guidelines provide an exception to the NPDES permit requirement.

1. Statutory framework

Congress passed the Federal Water Pollution Control Act Amendments in 1972 with the stated purpose of restoring and maintaining the integrity of the nation's waters. 33 U.S.C. Sec. 1251(a). To achieve this goal, the Act requires the strict enforcement of certain technology-based effluent limitations. See Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1371 (D.C.Cir.1977). As the primary means for enforcing these effluent limitations, Congress established the NPDES permit system. Id.; see also Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976). In order for any person lawfully to discharge any pollutant from a point source into navigable waters of the United States, that person must obtain an NPDES permit and comply with its terms. 33 U.S.C. Sec. 1311(a) ("Except as in compliance with this section [and certain other sections] of this title, the discharge of any pollutant by any person shall be unlawful."). The Supreme Court explained:

Under the NPDES, it is unlawful for any person to discharge a pollutant without

Page 1059

obtaining a permit and complying with its terms. An NPDES permit serves to transform generally applicable effluent limitations and other standards--including those based on water quality--into the obligations (including a timetable for compliance) of the individual discharger, and the [1972] Amendments [to the Act] provide for direct administrative and judicial enforcement of permits.

State Water Resources Control Bd., 426 U.S. at 205, 96 S.Ct. at 2025; see also Costle, 568 F.2d at 1376.

Among other conditions, an NPDES permit must incorporate effluent limitations for point sources based on guidelines "promulgated by EPA on an industry-by-industry basis under 33 U.S.C. Secs. 1311(b), 1314." American Petroleum Inst. v. Environmental Protection Agency, 787 F.2d 965, 969 (5th Cir.1986). The guidelines do not specify the use of a particular technology. Rather, they establish effluent limitations that can be achieved only through the use of a certain quality of technology. Section 1311(b)(2)(A) requires the EPA to establish effluent limitations guidelines for existing point sources other than publicly owned treatment works based on the application of the "best available technology economically achievable" (BAT). BAT provides the criteria for issuing NPDES permits, replacing the case-by-case method previously employed, and also provides the basis for the effluent limitations issued as part of the permit's conditions. American Petroleum Inst., 787 F.2d at 969.

2. Application to Alta Verde

The Act defines "point source" to include "concentrated animal feeding operations." 33 U.S.C. Sec. 1362(14); 40 C.F.R. Sec. 122.23(a) (1988). An animal feeding operation

is a concentrated animal feeding operation if ... more than 300 slaughter or feeder cattle [are contained] and pollutants are discharged into navigable waters ...

Provided, however, that no animal feeding operation is a concentrated animal feeding operation as defined above if such animal feeding operation discharged only in the event of a 25-year, 24-hour storm event.

40 C.F.R. Sec. 122 Appendix B (1988). In other words, an animal feeding operation must contain more than a specified number of animals and must discharge pollutants into navigable waters. Even if it meets these two requirements, however, the regulations except feeding operations that discharge pollutants only on the occurrence of a 25-year, 24-hour storm event. The parties agree that Alta Verde met the first two requirements--it is well above the size requirement, and it discharged into navigable waters. The dispute turns on whether Alta Verde fits within the exception for feedlots that discharge only on the occurrence of a 25-year, 24-hour storm event.

A 25-year, 24-hour storm event is a rainfall event with a probable recurrence interval of once in twenty-five years. 40 C.F.R. Sec. 412.11(e) (1988). The parties stipulated that a 25-year, 24-hour storm event means, for the Eagle Pass area, 7.1 inches of rainfall within a 24-hour period. Alta Verde did not discharge in 1987 as a result of such a heavy storm, which has not occurred since 1936, but because the combined rainfall that spring exceeded the capacity of Alta Verde's wastewater disposal system. The district court noted that, depending on which experts one believes, Alta Verde's capacity at the time of the complaint, and at the time of the discharges, was either slightly more...

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    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
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    ...that subsequent agency action or the cessation of violations during a citizen action may moot the case. See Carr v. Alta Verde Indus., 931 F.2d 1055, 1062 (5th Cir. 1991) ("A suit may be dismissed because the defendant complies with the [CWA] subsequent to the complaint if the defendant's c......
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    ...of a continuous or intermittent violation do not raise a genuine issue of material fact." Carr v. Alta Verde Industries, Inc. , 931 F.2d 1055, 1063 (5th Cir. 1991) (citing Gwaltney , 484 U.S. at 64, 108 S.Ct. 376 ). See Tyson Foods , 897 F.2d at 1135. In that respect, Drummond contends that......
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    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • 28 Junio 1993
    ...of a pollutant not in compliance with the conditions or limitations of the NPDES permit. See Carr v. Alta Verde Industries, Inc., 931 F.2d 1055, 1058 (5th 1. Penalties May Be Imposed For A Violation Of The Permit The government has brought this action for civil penalties under § 309(b) and ......
  • McClelland v. Gronwaldt, No. 97-40592
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 9 Septiembre 1998
    ...Parrish, 45 F.3d 958, 961 (5th Cir.1995) (internal quotation marks and citation omitted). See also Carr v. Alta Verde Industries, Inc., 931 F.2d 1055, 1061 (5th Cir.1991) (stating that all questions of subject matter jurisdiction except mootness are determined as of the date of the filing o......
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72 cases
  • La. Crawfish Producers Ass'n W. v. Mallard Basin, Inc., NO. 6:10-cv-1085 (lead)
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • 9 Enero 2019
    ...that subsequent agency action or the cessation of violations during a citizen action may moot the case. See Carr v. Alta Verde Indus., 931 F.2d 1055, 1062 (5th Cir. 1991) ("A suit may be dismissed because the defendant complies with the [CWA] subsequent to the complaint if the defendant's c......
  • Black Warrior River-Keeper, Inc. v. Drummond Co., Case No. 2:16-cv-01443-AKK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 7 Mayo 2019
    ...of a continuous or intermittent violation do not raise a genuine issue of material fact." Carr v. Alta Verde Industries, Inc. , 931 F.2d 1055, 1063 (5th Cir. 1991) (citing Gwaltney , 484 U.S. at 64, 108 S.Ct. 376 ). See Tyson Foods , 897 F.2d at 1135. In that respect, Drummond contends that......
  • US v. Aluminum Co. of America, No. 6:92 CV 564.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • 28 Junio 1993
    ...of a pollutant not in compliance with the conditions or limitations of the NPDES permit. See Carr v. Alta Verde Industries, Inc., 931 F.2d 1055, 1058 (5th 1. Penalties May Be Imposed For A Violation Of The Permit The government has brought this action for civil penalties under § 309(b) and ......
  • McClelland v. Gronwaldt, No. 97-40592
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 9 Septiembre 1998
    ...Parrish, 45 F.3d 958, 961 (5th Cir.1995) (internal quotation marks and citation omitted). See also Carr v. Alta Verde Industries, Inc., 931 F.2d 1055, 1061 (5th Cir.1991) (stating that all questions of subject matter jurisdiction except mootness are determined as of the date of the filing o......
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7 books & journal articles
  • Developments in Standing for Public Lands and Natural Resources Litigation
    • United States
    • Environmental Law Reporter Nbr. 48-12, December 2018
    • 1 Diciembre 2018
    ...upon which standing was originally based, plaintif lacked standing to pursue other claims on appeal); Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061, 21 ELR 21005 (5th Cir. 1991) (reevaluating standing based on diferent members’ aidavits on appeal where defendants settled with, and st......
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    ...Texaco Ref. & Mktg. , 2 F.3d at 501-02 (quoting Chesapeake Bay Found. , 844 F.2d at 171-72, and citing Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1062, 21 ELR 21005 (5th Cir. 1991); Union Oil Co. of Cal. , 853 F.2d at 671; Gwaltney , 890 F.2d at 693 (quoting Chesapeake Bay Found. , 844......
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