Connecticut Fund for Environment, Inc. v. Upjohn Co.

• Decision Date: 18 May 1987
• Docket Number: Civ. No. N-85-349 (PCD).
• Citation: 660 F. Supp. 1397
• Parties: CONNECTICUT FUND FOR the ENVIRONMENT, INC., Natural Resources Defense Council, Inc. v. The UPJOHN COMPANY.
• Court: U.S. District Court — District of Connecticut

660 F. Supp. 1397

CONNECTICUT FUND FOR the ENVIRONMENT, INC., Natural Resources Defense Council, Inc. v. The UPJOHN COMPANY.

Civ. No. N-85-349 (PCD).

United States District Court, D. Connecticut.

May 18, 1987.

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Katharine H. Robinson, Hartford, Conn., for Connecticut Fund.

James Thornton, New York City, for Natural Resources.

S. Robert Jelley, Wiggin & Dana, New Haven, Conn., Douglas E. Kliever, John M. Bredehoft, Clearly Gottlieb Steen & Hamilton, Washington, D.C., for defendant.

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

DORSEY, District Judge.

I. Procedural History

Plaintiffs, pursuant to 33 U.S.C. § 1365, seek a declaratory judgment that defendant, in violation of the Federal Water Pollution Control Act ("FWPCA"), has exceeded the pollution discharge limits ("limits") allowed by the National Pollutant Discharge Elimination System ("NDPES") Permit No. CT0001314 ("Permit"). Plaintiffs further seek (1) an injunction against future violations of the Permit; (2) an order that defendant provide plaintiffs with copies of all reports made of its discharge levels; (3) an order that defendant pay civil penalties of $10,000 for each day of each violation of the Permit, pursuant to 33 U.S.C. § 1319(d); and (4) award plaintiff costs, pursuant to 33 U.S.C. § 1365(d). This ruling will consider the parties' cross motions for summary judgment.

II. Facts

Plaintiffs assert that their members' recreational, aesthetic and environmental interests are adversely affected by defendant's alleged discharge of pollutants beyond the limits set forth in the Permit.¹ Plaintiffs' standing is not in question. See Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir.1985) (person who finds water pollution offensive to his aesthetical values meets the standing requirements of Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir.1984); Rite-Research Improves the Environment v. Costle, 650 F.2d 1312, 1319 (5th Cir.1981)). Defendant, a corporation, manufactures organic chemicals in North Haven, Connecticut. It discharges approximately 570,000 gallons per day of treated wastewater into the Quinnipiac River. This discharge is subject to the Permit originally issued by the Connecticut Department of Environmental Protection ("DEP") on December 30, 1974, and amended on several occasions. The Permit limits defendant's discharge of pollutants.² Plaintiffs allege that between December 1981 and March 1986³ defendant exceeded the limits and thus violated FWPCA 1374 times.⁴

III. Discussion

A. Defendant's Motion for Summary Judgment

Defendant has moved for summary judgment on the ground that plaintiffs lack authorization under 33 U.S.C. § 1365(b)(1)(B) to maintain this action. Alternatively, defendant argues for dismissal under the abstention articulated in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). Plaintiffs have moved for summary judgment on the ground that there is no genuine issue of material fact as to defendant's violation of the Permit on numerous occasions and that plaintiffs are entitled to both monetary and equitable relief.⁵ Defendant's motion will be considered first.⁶

1. Prior State Proceeding

Section 1365(b)(1)(B) provides:

No action may be commenced —

. . . . .

if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

On July 23, 1985, Stanley Pac, Commissioner of DEP, referring to defendant's February, March and April, 1985 alleged Permit violations, requested "that the Attorney General seek a forfeiture under section 22a-438 of the Connecticut General Statutes." Letter from Stanley Pac to Atty. Gen. Joseph Lieberman (July 23, 1985). A complaint was drafted and verified on August 2, 1985. See Complaint Cover Sheet in Stanley Pac, Commissioner of DEP v. The Upjohn Co., CV 85-0308953 S, Superior Court, Judicial District of Hartford/New Britain at Hartford. That complaint was served on August 7, 1985, and filed in court on August 9, 1985. This action was filed on August 6, 1985.⁷

The first question is: What is the meaning of "commence"? Defendant, arguing that FWPCA citizen suits were to be subordinate to governmental enforcement, urges that the state action be considered as having been commenced on July 23, 1985, the date Commissioner Pac requested initiation of a state suit. Plaintiffs, arguing that the DEP was given the requisite sixty-day notice to initiate its action, urge that commencement be found either at the time of service of process or upon the filing of the complaint.

The private enforcement provision of FWPCA was designed to serve a twofold purpose — first to act as a spark to ignite agency enforcement and second to act as an alternative enforcement mechanism absent agency enforcement. Baughman v. Bradford Coal Co., 592 F.2d 215, 218 (3d Cir.1978) cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). Congress provided, however, that citizen suits should be subordinate to agency enforcement and devised restrictions to ensure that result. Contract Plating Co., 631 F.Supp. at 1293 (under § 1365(b)(1)(B) a defendant would "not be subjected simultaneously to multiple suits, and potentially to conflicting court orders, to enforce the same statutory standards"). See also, Friends of the Earth, 768 F.2d at 63, quoting Natural Resources Defense Council v. Train, 510 F.2d 692, 700 (D.C.Cir.1975) ("Recognizing the `obvious danger that unlimited public actions might disrupt the implementation of the Act and overburden the courts,' Congress incorporated explicit restrictions on citizen suits" under § 1365.).

"It is a `familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'" Friends of the Earth, 768 F.2d at 62, quoting Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Here, the operable language is — "commenced ... a civil or criminal action in a court of the United States...." § 1365(b)(1)(B). Defendant is correct in noting that the common meaning of the word is "begin" or "initiate," but for purposes of this statute it must be interpreted as a term of art. Specifically, an action is "commenced" in federal court when a complaint is filed, Fed.R.Civ.P. 3; Chesapeake Bay Foundation v. American Recovery Co., 769 F.2d 207, 208 (4th Cir.1985), and, in a Connecticut court when the complaint is served, Valley Cable Vision, Inc. v. Public Utilities Comm'n, 175 Conn. 30, 33, 392 A.2d 485 (1978). Here, the state complaint was served on August 7, 1985, and filed on August 9, 1985; the federal complaint was filed on August 6, 1985. Thus, under either federal or state interpretation of commencement, the federal suit was commenced first.⁸ Congress did not use precise language in construing this section. Commencing a suit is variously stated: "may initiate a civil suit," "begins a civil action," "file an action," "act on the alleged violation."⁹ Legislative History at 3745. Nevertheless, absent a clear contrary intention, these phrases must be read to be mere substitutes for the word "commence" and, therefore, embody the legal definition of how it is interpreted.

The sixty day waiting period of § 1365(b)(1)(B) gives the government the opportunity to act and to control the course of the litigation if it acts within that time period. If the government delays, then the citizens may go forward with their own suit, unless before they file "the Administrator or State has commenced and is diligently prosecuting" its own enforcement action. § 1365(b)(1)(B). This latter statutory bar is an exception to the jurisdiction granted in subsection (a) of § 1365, and jurisdiction is normally determined as of the time of the filing of a complaint. Moreover, the verb tenses used in subsection (b)(1)(B) and the scheme of the statute demonstrate that the bar was not intended to apply unless the government files suit first (and is diligently prosecuting such suit).

Chesapeake Bay Foundation, 769 F.2d at 208 (construing three hour difference between citizen filing and government filing in federal court) (dicta). In short, absent a clear Congressional intention to the contrary, the statute does not allow consideration of acts in preparation for the filing of a complaint; rather, the court must apply an inflexible rule which determines jurisdiction from the time of filing the complaint. Accordingly, plaintiffs are not barred from bringing this suit under § 1365(b)(1)(B).

2. Abstention

Defendant also contends that this case should be dismissed based upon "considerations of `wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'" Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246, quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). Defendant's argument is not supported by the law.

The burden placed upon one seeking a stay or dismissal of a federal court action in favor of a state action is a heavy one. Landis v. North American Co., 299 U.S. 248, 255, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936); United States v. Cargill, Inc., 508 F.Supp. 734, 748 (D.Del.1981). "Only with the presence of exceptional circumstances will the existence of concurrent state proceedings warrant the abdication of `the virtually unflagging obligation of the federal courts to...