Chesapeake Bay Foundation v. Gwaltney of Smithfield

• Decision Date: 26 June 1985
• Docket Number: Civ. A. No. 84-0366-R.
• Citation: 611 F. Supp. 1542
• Parties: CHESAPEAKE BAY FOUNDATION, et al., Plaintiffs, v. GWALTNEY OF SMITHFIELD, LTD., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

611 F. Supp. 1542

CHESAPEAKE BAY FOUNDATION, et al., Plaintiffs, v. GWALTNEY OF SMITHFIELD, LTD., Defendant.

Civ. A. No. 84-0366-R.

United States District Court, E.D. Virginia, Richmond Division.

June 26, 1985.

COPYRIGHT MATERIAL OMITTED

Jeter M. Watson, Chesapeake Bay Foundation, Richmond, Va., James Thornton, Natural Resources Defense Council, Inc., New York City, Ann Powers Gailis, Scott Burns, Chesapeake Bay Foundation, Inc., Annapolis, Md., for plaintiffs.

H. Woodrow Crook, Jr., Smithfield, Va., Anthony F. Troy, James E. Ryan, Jr., George A. Somerville, Mays, Valentine, Davenport & Moore, Richmond, Va., for defendant.

J. Robert Brame, III, McGuire, Woods & Battle, Richmond, Va., for Ralston.

MEMORANDUM

MERHIGE, District Judge.

Before the Court is the question of the amount that ought to be assessed, in civil penalties, against defendant for polluting Virginia's waters in violation of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (the "Act"). The Court has already determined, in granting plaintiffs' motion for partial summary judgment on the issue of liability, that defendant has violated the Act; the parties do not now contest liability. They do, however, differ over (i) defendant's maximum liability for its violations; and (ii) the appropriate penalty for those violations. Plaintiffs contend that defendant is subject to a maximum of $8,300,000 in civil penalties, and that the full measure of liability should be imposed. Defendant, on the other hand, contends that it is subject to a maximum of about $980,000 in civil penalties, and that the Court should assess somewhere between $12,000 and $20,000.

Defendant also vigorously contests the Court's subject-matter jurisdiction over this lawsuit. First, it argues that plaintiffs do not have standing to prosecute this action. Second, it argues that the statute does not authorize citizen suits against defendants who are not discharging unlawfully when the suit is filed.

Following trial, defendant sought and received the Court's leave to file a post-trial memorandum; about a month thereafter, defendant filed that memorandum. Plaintiffs filed a short response, and also had filed a trial memorandum on the day prior to trial. Several months later, defendant filed a motion to dismiss based on its argument that a continuing violation is required, which has been fully briefed. All the foregoing matters are now ripe for disposition.

BACKGROUND

This suit is a citizen enforcement action —a "citizen suit"—authorized by Section 505 of the Clean Water Act, 33 U.S.C. § 1365. Plaintiffs are two non-profit corporations dedicated to protecting natural resources: the Chesapeake Bay Foundation (CBF), a regional environmental group with over 19,000 members residing in the Chesapeake Bay area, including Virginia; and the Natural Resources Defense Council (NRDC), an environmental group with members throughout the nation, including over 800 members in Virginia. Defendant, Gwaltney of Smithfield, Ltd. (Gwaltney), is in the business of processing and packing pork products. It is a subsidiary of Smithfield Foods, Inc. (Smithfield Foods). Gwaltney's plant, the operation of which is the subject of this lawsuit, is situated on the Pagan River near Smithfield, Virginia. In the course of its production, the plant discharges wastewater into that river.

At all times material hereto, Gwaltney was allowed to discharge various pollutants from that plant into the river—within certain limits, as set out in a "National Pollution Discharge Elimination System" (NPDES) permit.¹ Such permits are issued pursuant to procedures and regulations under the Clean Water Act. See 33 U.S.C. § 1342.

From October 27, 1981 until May 15, 1984, Gwaltney's plant exceeded its discharge limitation for a variety of pollutants² on a number of occasions. Gwaltney itself reported these violations in its discharge monitoring reports (DMRs), as required by law.³ Prior to October 27, 1981, Gwaltney was not responsible for the pollution discharges from the plant at issue here. Instead, ITT-Gwaltney, Inc. (ITT-Gwaltney) owned the plant and was responsible. Under ITT-Gwaltney as well as under Gwaltney, the plant repeatedly exceeded a number of its NPDES discharge limitations. Gwaltney acknowledges that it was aware of ITT-Gwaltney's record of non-compliance. Only the violations subsequent to Gwaltney's assumption of responsibility on October 27, 1981, are at issue here, however.

The violations reported in Gwaltney's DMRs form the basis of this action. Where a permittee is in violation of an NPDES discharge limitation, it is also "in violation of ... an effluent standard or limitation under the Act," 33 U.S.C. § 1365(a)(1), which makes the permittee subject to citizen suits. Id. For citizen suits under the Clean Water Act, Congress has authorized the district courts to assess appropriate civil penalties. 33 U.S.C. § 1365(a). Such penalties may be as high as "$10,000 per day of such violation." 33 U.S.C. § 1319(d).

DISCUSSION

I. Standing.

At the outset, the Court must dispose of defendant's contention that plaintiffs have no standing under either the Act or Article III of the Constitution. Standing is an element of jurisdiction over the subject matter. See, e.g., Warth v. Seldin, 422 U.S. 490, 494-95, 95 S.Ct. 2197, 2203, 45 L.Ed.2d 343 (1975). Thus, if plaintiffs have no standing, then the Court may not proceed further. See id.

Gwaltney contends that plaintiffs' allegations are insufficient to establish standing for CBF and NRDC to sue in their own right. It then acknowledges that the allegations of standing in the complaint, taken alone, might be sufficient for CBF and NRDC to sue on behalf of some of their members. But Gwaltney argues that no such standing has been established because plaintiffs did not present evidence of standing at trial, even though Gwaltney denied plaintiffs' standing allegations in its answer and Gwaltney's counsel demanded prior to trial that plaintiffs' counsel establish at trial that plaintiffs meet the Clean Water Act's standing requirements as articulated in Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir.1984). Plaintiffs, on the other hand, argue that they have established standing to sue both in their own right and on behalf of their members. As for standing to sue for their members, they refer to the Court's findings in granting them summary judgment on the issue of liability, as well as to a number of affidavits they have filed at different stages of the litigation.

It is clear that, at least under the Clean Water Act,⁴ a citizen enforcer can only establish standing if it meets the requirements of "injury in fact" set forth in Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). See, e.g., Sierra Club v. SCM Corp., 747 F.2d 99, 107 (2d Cir.1984). An organizational plaintiff, such as CBF or NRDC, can establish "injury in fact" through injury to their members as well as through injury to the organization itself. See, e.g., Sierra Club v. Morton, 405 U.S. at 739, 92 S.Ct. at 1368. The parties do not dispute these basic principles of standing.

The Court need not consider the dispute over whether plaintiffs have established standing to sue in their own right, because it concludes that they have established standing to sue on behalf of their members. They established such standing when the Court granted their motion for summary judgment on the issue of liability. In support of that motion, plaintiffs included an affidavit of one of their counsel stating:

Members of CBF reside in Virginia, in the vicinity of the Pagan River, and recreate in, on, or near, and otherwise use or enjoy the Pagan River and the water system of which it is a part.... The interests of CBF and of CBF's members have been, are being, and will be adversely affected by Gwaltney's failure to comply with its NPDES permit requirements.

The affidavit included an identical paragraph about members of NRDC. Defendant failed to dispute this in any way at the summary judgment hearing, although it had raised the standing issue at the pleading stage.⁵ Indeed, Gwaltney failed to file any response whatsoever to plaintiffs' motion for summary judgment, despite the fact that two months had elapsed between the filing of plaintiffs' motion and the hearing on it. In granting plaintiffs' motion the Court specifically stated, in its findings of fact from the bench, that plaintiffs have standing to prosecute this action.

Apparently, Gwaltney believes that any showing of standing that plaintiffs may have made previously is insufficient in light of a recent decision by the Court of Appeals for the Second Circuit, Sierra Club v. SCM, supra, 747 F.2d 99, construing standing requirements under the Clean Water Act. Gwaltney suggests that the case establishes a requirement that plaintiffs identify affected members in order to establish standing under the Act. The Court does not agree, however.

In Sierra Club v. SCM, the issue pertaining to standing before the Court of Appeals was whether the Sierra Club, solely on the basis of its "institutional interest in the preservation of the environment," could sustain "injury in fact" for standing purposes in a citizen suit under the Clean Water Act. See Sierra Club v. SCM, supra, 747 F.2d at 103. Writing for a unanimous panel, Judge Kearse rejected Sierra Club's contention. After carefully reviewing the legislative history of the Act, she concluded that the Sierra Club could only establish standing by showing actual injury within the meaning of Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and that the Sierra Club's "institutional interest" was insufficient in that regard. Id. at 107. She further held that an organizational plaintiff can satisfy the actual injury requirement by "providing a concrete indication" that the organization or "one or more of its members" use the waterway into which the defendant discharges its wastes or...