Chesapeake Bay Foundation v. Bethlehem Steel Corp.

• Decision Date: 06 May 1985
• Docket Number: Civ. No. Y-84-1620.
• Citation: 608 F. Supp. 440
• Parties: CHESAPEAKE BAY FOUNDATION, et al. v. BETHLEHEM STEEL CORPORATION.
• Court: U.S. District Court — District of Maryland

608 F. Supp. 440

CHESAPEAKE BAY FOUNDATION, et al. v. BETHLEHEM STEEL CORPORATION.

Civ. No. Y-84-1620.

United States District Court, D. Maryland.

May 6, 1985.

COPYRIGHT MATERIAL OMITTED

James Thorton, Esquire, New York City, and Scott Burns, Annapolis, Md., for plaintiffs.

Benjamin Rosenberg, G. Stewart Webb, Jr., and Jack L. Harvey, Baltimore, Md., for defendant.

MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Plaintiffs, Chesapeake Bay Foundation ("CBF") and the Natural Resources Defense Council ("NRDC"), have filed suit against the defendant, Bethlehem Steel Corporation, for allegedly violating the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. ("the Act"), specifically, Sections 301 and 402 of the Act, 33 U.S.C. §§ 1311, 1342. The Act establishes a system to limit the kind and quantity of pollutants which may be discharged into the navigable waters of the United States. The Act also provides for a system of monitoring by those who discharge pollutants under permits issued pursuant to the Act.

The Chesapeake Bay Foundation is a membership organization dedicated to preserving and restoring the environment of the Chesapeake Bay and educating the public about the Bay. The Natural Resources Defense Council is a national organization with the claimed goal of joining legal expertise with scientific knowledge to safeguard America's natural resources and protect public health. The Bethlehem Steel Corporation operates a steelmaking plant in Sparrows Point, Maryland under state and local permits, issued pursuant to the Act, limiting discharges into the Patapsco River, Bear Creek, Jones Creek, and Old Road Bay, all of which empty into Baltimore Harbor. Plaintiffs allege that defendant has violated the terms of those permits.

Both plaintiffs have brought this suit under the citizen suit provision of the Act, 33 U.S.C. § 1365(a).

That provision provides, in part,

Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf,

(1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this Act

* * * * * *

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under Section 309(d) of this Act.

For purposes of standing under Section 505, 33 U.S.C. § 1365, a citizen is a "person or persons having an interest which is or may be adversely affected." Section 505(g), 33 U.S.C. § 1365(g). Both plaintiffs claim standing in their own right and as representatives of their members who are or may be adversely affected.

Plaintiffs' motion for partial summary judgment on the issue of liability is now ripe for resolution. Plaintiffs seek a declaratory judgment that the defendant has violated the Act by exceeding the terms of its permit and argue that the defendant's own reports, submitted to state and federal authorities as required by the Act, establish conclusively the numerous permit violations which have occurred, and that summary judgment is appropriate. Defendant has countered by claiming that the plaintiffs lack standing to bring this suit and that most of the alleged violations occurred outside of the applicable statute of limitations. Defendant also argues that the monitoring reports submitted to state and local authorities are not conclusive on the issue of whether there has been a permit violation.

Before proceeding to a determination of these substantive issues, it is necessary to outline the statutory scheme on which the claims are based.

In 1972, Congress enacted the Federal Water Pollution Control Act. Its goal was to eliminate by 1985 the discharge of pollution into the nation's waterways. To achieve that goal, Congress determined that industrial and municipal discharges should be regulated by permits. A National Pollutant Discharge Elimination System ("NPDES") permit, issued under the Act, limits the kind and quantity of pollutants an industrial or municipal discharger may emit into the navigable waters of the United States. The permits should be designed to reflect the technological feasibility of particular methods of reducing pollution. The discharge of any pollutant is unlawful unless the discharger first obtains a permit and complies with its terms. Section 301(a), 33 U.S.C. § 1311(a) makes unlawful the "discharge of any pollutant by any person" except in compliance with numerous provisions of the Act, including § 402 which established the NPDES. See EPA v. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976).

In addition to limitations on discharges, called effluent limitations, all NPDES permits contain monitoring and reporting obligations designed to make the permits enforceable. Under § 308, 33 U.S.C. § 1318, the Administrator of the Environmental Protection Agency must require that permit holders install monitoring equipment, that they sample and monitor effluent, and that they keep records of the results and report such results as required. These reports, called Discharge Monitoring Reports ("DMRs"), are specified in 40 C.F.R. 122.41, and must be filed by the holder of each federal — or state — issued NPDES permit. Such reports are usually public information, unless reported information is entitled to protection as a trade secret. 33 U.S.C. § 1318(b).

The Act also provides a mechanism for delegating permit writing and program control to state governments. Under Section 402(b), 33 U.S.C. § 1342(b), the Administrator is to approve and authorize a state program that meets certain criteria. State programs must, for example, enforce effluent limits at least as strict as federal effluent limits. Section 402 encourages states to enforce stricter standards. States must also require that permit holders file DMRs. The State of Maryland's NPDES program was approved and authorized by the Administrator on September 5, 1974.

The obligations and limitations of NPDES permits are binding unless timely challenged, and may not be reexamined in an enforcement proceeding. The terms of a permit issued by EPA "shall not be subject to judicial review in any civil or criminal proceeding for enforcement." Section 509(b)(2), 33 U.S.C. § 1369(b)(2). Maryland law contains a parallel provision. Under Maryland law, a permit holder may challenge a permit's terms and conditions only during the 15 day period after a notice of informational hearing on the proposed permit is published. XI COMAR § 10.50.03.02A.

Finally, when state and federal governments have failed to enforce a permit, the Act grants any citizen who has an "interest which is or may be affected" the right to step into the shoes of the government and enforce the permit. Section 505(g), 33 U.S.C. § 1365(g). The citizen may seek a declaration of liability, an order requiring compliance, civil penalties payable to the United States Treasury, and costs including attorneys' fees. Sections 505, 309, 33 U.S.C. §§ 1365, 1319. The Act's citizen suit provision is modeled on the citizen suit provision in the Clean Air Act. See S.Rep. No. 92-414, 92d Cong. 1st Sess. 79 (1971), reprinted in U.S.Code Cong.Ad.News, p. 3668. Friends of the Earth v. Carey, 535 F.2d 165, 172-74 (2d Cir.1976).

The first inquiry for this Court on the present motion requires resolution of the standing of plaintiffs to bring this action.

STANDING

Section 505(a) provides that any "citizen" may commence a civil action to enforce a permit limitation, and Section 505(g) provides that a citizen is a person or persons having an interest which is or may be adversely affected. 33 U.S.C. § 1365(g). According to the Supreme Court, this phrase "was intended by Congress to allow suits by all persons possessing standing under ... Sierra Club v. Morton, 405 U.S. 727 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)." Middlesex County Sewage Authority v. Sea Clammers, 453 U.S. 1, 16, 101 S.Ct. 2615, 2624, 69 L.Ed.2d 435 (1981). This section was intended to confer standing to the limit that Article III of the Constitution allows. See Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 576-78 (D.C.Cir.1980). Plaintiffs argue that they have shown sufficient interest and injury to establish standing, both as organizations and as representatives of their members. Defendant asserts, however, that plaintiffs have failed to establish facts sufficient to meet the constitutional threshold for standing. Proof of some injury that has resulted from the putatively illegal conduct of the defendant is, according to the Supreme Court, the "irreducible minimum" required for standing under Article III. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

Plaintiffs' claim to standing is based on a variety of factors. Plaintiff Chesapeake Bay Foundation is an organization dedicated to preserving and restoring the environment of the Chesapeake Bay. It employs workers in and around the Patapsco River and those workers are allegedly affected by water quality conditions in the vicinity of Bethlehem's plant. Bethlehem's alleged noncompliance with its NPDES permit may contribute to those water quality conditions. CBF also purports to have brought suit on behalf of its members and has named three of those members and submitted affidavits from them. Those affidavits show that at least three CBF members are residents of Maryland and claim that they use and enjoy the Patapsco River and the water system of which it is a part. It is alleged that those three members have recreational, aesthetic and environmental interests that are being, and will be, affected by defendant's discharges in the area. Plaintiff NRDC also sues on its...