Friends of Earth v. Gaston Copper Recycling Corp.

• Decision Date: 29 May 1998
• Docket Number: No. CIV. A. 3:92-2574-0.,CIV. A. 3:92-2574-0.
• Citation: 9 F.Supp.2d 589
• Court: U.S. District Court — District of South Carolina
• Parties: FRIENDS OF THE EARTH, INC., and Citizens Local Environmental Action Network, Inc., Plaintiffs, v. GASTON COPPER RECYCLING CORPORATION, Defendant.

9 F.Supp.2d 589

FRIENDS OF THE EARTH, INC., and Citizens Local Environmental Action Network, Inc., Plaintiffs, v. GASTON COPPER RECYCLING CORPORATION, Defendant.

No. CIV. A. 3:92-2574-0.

United States District Court, D. South Carolina, Columbia Division.

May 29, 1998.

Bruce J. Terris, Eliot M. Blake, Esquire, J. Martin Wagner, Terris Pravlik and Millian, Washington, DC, Robert Guild, Columbia, SC, Kathleen L. Millian, Terris Pravlik and Millian, Washington, DC, for Plaintiffs.

Harold W. Jacobs, Nexsen Pruet Jacobs and Pollard, James William Potter, Nexsen Pruet Jacobs and Pollard, Columbia, SC, Jeanne M Lyles, Nelson Mullins Riley and Scarborough LLP, Charleston, SC, for Defendant.

OPINION AND ORDER

PERRY, Senior District Judge.

This action was commenced by the plaintiffs, Friends of the Earth, Inc. (FOE) and Citizens Local Environmental Action Network, Inc. (CLEAN) against the defendant Gaston Copper Recycling Corporation pursuant to Section 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365. Plaintiffs allege inter alia that the defendant has repeatedly violated its National Pollutant Discharge Elimination System (NPDES) Permit Number SC0034541, issued to the defendant by the South Carolina Department of Health and Environmental Control (DHEC) in violation of Section 301(a), 308(a) and 402 of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1311(a), 1318(a) and 1342. Plaintiffs seek a declaratory judgment, injunctive relief, the imposition of civil penalties, attorneys' fees, expert witness fees and costs. The defendant admits its status as a corporation and that, pursuant to Section 402 of the Federal Water Pollution Control Act, DHEC issued NPDES Permit number SC0034541 which governs the defendant's discharge of pollutants into the navigable waters affected by the defendant's facility in Gaston, South Carolina. The defendant denies that it has violated the terms of its NPDES Permit. Additionally, defendant denies FOE's existence as a not for profit corporation organized under the laws of the State of New York and that FOE is a membership organization with approximately 40,000 members.¹ Defendant also denies CLEAN's existence as a not for profit corporation and its status as "a statewide coalition representing 30 groups and individual members ...."² Finally, the defendant asserts that the plaintiffs lack standing to bring this action and it seeks dismissal thereof.

I

Congress enacted The Federal Water Pollution Control Act (also the Clean Water Act), 33 U.S.C. §§ 1251 et seq. "[t]o restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 1251(a). The Act prohibits the discharge of any pollutant into navigable waters except as authorized therein. 33 U.S.C. § 3111(a). One such exception is stated in 33 U.S.C. § 1342 which established the National Pollutant Discharge Elimination System (NPDES). Pursuant to the exception set forth therein, the Administrator of the Environmental Protection Agency (EPA) may issue permits authorizing the discharge of pollutants in accordance with specified conditions. 33 U.S.C. § 1342(a). Also, each State may establish and administer its own permit program, if the program conforms to federal guidelines and is approved by the Administrator of the EPA. 33 U.S.C. § 1342(b). As to waters subject to an approved state program, the Administrator of the EPA is required to suspend the issuance of federal permits. 33 U.S.C. § 1342(c)(1).

The holder of a state NPDES Permit is subject to both federal and state enforcement action upon failure to comply with the terms of the permit. 33 U.S.C. §§ 1319, 1342(b)(7). If no enforcement action is taken by federal or state authorities, private citizens may commence civil actions against any person "alleged to be in violation of" the conditions of either a federal or state NPDES Permit. 33 U.S.C. § 1365(a)(1). If the citizen prevails in such action, the court may order injunctive relief and/or impose civil penalties payable to the United States Treasury, 33 U.S.C. § 1365(a). See Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., et al., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).

South Carolina has established a federally approved state NPDES program administered by the South Carolina Department of Health and Environmental Control (DHEC). S.C.Code Ann. § 1-23-370 (Law.Co-op.1986). In 1984 a NPDES Permit was issued by DHEC to AT & T Nassau Metals Corporation (defendant's predecessor in title). The permit authorized the discharge of limited quantities of pollutants into the Boggy Branch of Bull Swamp Creek through Outfall 001;³ it set discharge limitations and monitoring requirements for several pollutant parameters;⁴ and it required monitoring on a monthly basis and reporting the monitoring results on a quarterly basis.

In September 1990, AT & T Nassau Metals Corporation sold the property covered by its NPDES Permit to the defendant Gaston Copper Recycling Corporation (GCRC or defendant). Defendant operated the facility under the NPDES Permit previously issued to AT & T Nassau until March 1, 1991 when DHEC issued a new permit to the defendant. The new permit contains two phases of effluent limits. The Phase I effluent limitations are substantially the same as those contained in the AT & T Nassau Permit. The Phase II effluent limits are more stringent for several parameters, including BOD, Cadmium, Copper, Lead, Zinc and pH. The 1991 permit contains a schedule of compliance for defendant to meet the Phase II effluent limits which included: submitting a preliminary engineering report by March 31, 1991; submitting final plans and specifications for any waste water treatment plant upgrade required to meet Phase II effluent limits by September 1, 1991; and complying with Phase II effluent limits by June 1, 1992. Because of intervening circumstances, DHEC later issued a draft modification to defendant's NPDES Permit to extend the deadline for compliance with the Phase II limits to March 14, 1993.⁵

II

On July 13, 1992 plaintiffs' attorneys wrote the Administrator of the EPA, DHEC and the defendant, notifying them of alleged violations of the defendant's NPDES Permit and of the plaintiff's intent, "at the close of the 60 day notice period" to file a citizen suit under Section 505(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a), "for violation of the permit." Thereafter, on September 14, 1992, plaintiffs commenced this action.

The plaintiffs allege and the defendant denies that the plaintiff Friends of the Earth (FOE) is a not for profit corporation organized under the laws of the State of New York with its principal place of business in Washington, D.C.; that FOE is a membership organization with approximately 40,000 members residing in all the states of the United States; that in this case FOE sues on behalf of itself and its members (Complaint, ¶ 6); that members of FOE reside in the vicinity of or own property or recreate in or near the waters of Boggy Branch of Bull Swamp Creek, the North Fork of Edisto River and tidally related waters affected by the facility's discharge of pollutants pursuant to the defendant's NPDES Permit; that the quality of the water of Boggy Branch of Bull Swamp Creek, the North Fork of the Edisto River and tidally related waters affected by the facility's discharge directly affects the health, economic, recreational, aesthetic and environmental interests of FOE's members (Complaint, ¶ 7); that defendant's actions in failing to monitor and report discharges from the facility as required by its permit interfere with FOE's efforts to research and of its members to monitor the compliance status of South Carolina dischargers with water pollution control laws and to take appropriate action thereon (Complaint, ¶¶ 8, 9).

Plaintiffs also allege and the defendant denies that the plaintiff Citizens Local Environmental Action Network (CLEAN) is a not for profit corporation organized under the laws of the State of South Carolina; that CLEAN is a statewide coalition representing 30 groups and individual members, dedicated inter alia to protecting and improving the waters of South Carolina; that the interests of CLEAN and its members have been and are adversely affected by defendant's violation of its NPDES Permit (Complaint, ¶ 10); that members of CLEAN reside in the vicinity of or own property or recreate in or near the Boggy Branch of Bull Swamp Creek, the North Fork of the Edisto River and tidally related waters affected by the facility's discharge of pollutants pursuant to its permit; that the quality of the waters of Boggy Branch of Bull Swamp Creek, the North Fork of the Edisto River and tidally related waters affected by the facility's discharge has adversely affected the health, economic, recreational, aesthetic and environmental interests of CLEAN's members and will continue to adversely affect CLEAN's members (Complaint, ¶ 11); that the interests of CLEAN and its members have been and will be adversely affected by the defendant's violation of the terms of its permit, and interfere with the efforts of CLEAN and its members to research the compliance status of South Carolina dischargers with water pollution control laws and to take appropriate action thereon (Complaint, ¶¶ 11, 12, 13). The plaintiffs allege and the defendant admits that the defendant is a corporation organized under the laws of Georgia (Complaint, ¶ 14); that DHEC issued permit number SC 0034541 to the defendant for its facility; that the permit authorizes defendant to discharge limited quantities of pollutants from its facility into the Boggy Branch of Bull Swamp Creek, a tributary of the North Fork of Edisto River, all of which are navigable waters of the United States (Complaint, ¶ 15). Plaintiffs allege and the defendant denies that defendant has failed to comply with its NPDES Permit (Complaint, ¶ 25). Plaintiffs seek extensive relief including a...