Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.

Citation629 F.3d 387
Decision Date05 January 2011
Docket NumberNo. 06-1714,06-1714
PartiesFRIENDS OF THE EARTH, INCORPORATED; Citizens Local Environmental Action Network, Incorporated, Plaintiffs-Appellees, v. GASTON COPPER RECYCLING CORPORATION, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Jeffrey M. Gaba, Gardere, Wynne & Sewell, LLP, Dallas, Texas, for Appellant. Kathleen L. Millian, Terris, Pravlik & Millian, LLP, Washington, D.C., for Appellees. ON BRIEF: Stacy R. Obenhaus, Gardere, Wynne & Sewell, LLP, Dallas, Texas, for Appellant. Bruce J. Terris, Carolyn Smith Pravlik, Aamra S. Ahmad, Terris, Pravlik & Millian, LLP, Washington, D.C., for Appellees.

Before TRAXLER, Chief Judge, and DAVIS and KEENAN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge KEENAN wrote the opinion, in which Chief Judge TRAXLER and Judge DAVIS joined.

OPINION

KEENAN, Circuit Judge:

In this appeal, we consider whether Friends of the Earth, Inc. (FOE) and Citizens Local Environmental Action Network, Inc. (CLEAN), (collectively, the plaintiffs), maintained standing to prosecute a citizen suit asserting violations of the Clean Water Act, 33 U.S.C. §§ 1251-1387, against Gaston Copper Recycling Corporation (Gaston). Before the district court's entry of a final judgment order, William Shealy, a CLEAN member who had established standing on behalf of CLEAN, passed away. In 2008, we ordered a limited remand of this case for factual findings relating to whether the plaintiffs continued to maintain standing through other group members after Shealy's death. After reviewing these findings, we now conclude that the plaintiffs established standing to sue through FOE and CLEAN member Guy Jones.

We also consider in this appeal Gaston's argument challenging the district court's imposition of penalties. Gaston argues that the district court erred: 1) in imposing penalties against Gaston for violations not contained in the plaintiffs' pre-suit "notice letter" required by 33 U.S.C. § 1365(b); and 2) in imposing penalties against Gaston for violations allegedly "wholly past," contrary to the requirement set forth in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), that citizen suits brought under the Clean Water Act may only assert ongoing violations. We hold that the district court erred in imposing certain penalties against Gaston. We affirm in part and reverse in part the district court's judgment, and remand the case.

I.
A.

The Clean Water Act prohibits the discharge of any pollutant from a "point source" into navigable waters without a permit. 33 U.S.C. §§ 1311(a), 1319(c)(2)(A), 1362(7), 1362(12), 1362(14). The National Pollutant Discharge Elimination System (NPDES) authorizes the issuance of permits for the discharge of limited amounts of effluents.1 33 U.S.C. § 1342. Permit holders must comply with effluent limits and also must comply with various monitoring, testing, and reporting requirements. 33 U.S.C. § 1318. In South Carolina, the Department of Health and Environmental Control (DHEC) is authorized to issue NPDES permits. See S.C.Code Ann. § 48-1-100.

The Clean Water Act provides a mechanism for private citizen and public agency enforcement. The Act authorizes citizen suits, stating that "any citizen may commence a civil action on his own behalf" "against any person ... who is alleged to be in violation of [ ] an effluent standard or limitation." 33 U.S.C. § 1365(a)(1). A violation of an "effluent standard or limitation" includes a violation of any term or condition of an approved permit. 33 U.S.C. § 1365(f)(6). Remedies available in a citizen suit include an injunctive awardand the imposition of civil penalties. 33 U.S.C. § 1365(a).

Under the Clean Water Act, no citizen suit "may be commenced" "prior to sixty days after the plaintiff has given notice of the alleged violation" to the Administrator of the Environmental Protection Agency (EPA), the state, in which the alleged violation occurred, and the alleged violator. 33 U.S.C. § 1365(b)(1)(A). Also, no citizen suit "may be commenced" if the EPA or the state has begun and is diligently prosecuting an action for a violation. 33 U.S.C. § 1365(b)(1)(B).

The notice required in citizen suits "shall be given in such manner as the Administrator [of the EPA] shall prescribe by regulation." 33 U.S.C. § 1365(b). The corresponding regulation states that the notice must include sufficient information to allow the recipient

to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the persons or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.

40 C.F.R. § 135.3(a).

B.

The detailed facts of this case are set forth in two of our prior opinions. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 263 Fed.Appx. 348 (4th Cir.2008) ( Gaston II ); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir.2000)(en banc)( Gaston I ). We summarize those facts and the relevant procedural history below.

Gaston owns a metals smelting facility in Lexington County, South Carolina, which Gaston operated until 1995. After 1995, Gaston continued to treat contaminated storm water at the facility and to release this treated water into Lake Watson, which is located on Gaston's property. Lake Watson's water overflow discharges into Boggy Branch, a tributary of Bull Swamp Creek. The water in that creek flows into the North Fork of the Edisto River. The pollutants entering the waterway from Gaston's facility result from the contact of rainwater with scrap metal stored by Gaston on its property.

When Gaston purchased the facility in 1990, the prior owner had obtained a NPDES permit, which was reissued to Gaston and was effective through March 1, 1991. Gaston was issued a new permit (1991 permit), which contained two phases of effluent limits. The Phase I limits were effective beginning March 1, 1991, and the Phase II limits initially were effective from June 1, 1992 until the permit expired.

The Phase I limits in the 1991 permit were substantially the same as those contained in the previous permit. Those limits applied to numerous specified pollutants. The Phase II limits imposed more severe restrictions for specified pollutants.

The 1991 permit contained monitoring and reporting requirements, and included a three-part schedule of compliance for Gaston to meet its Phase II effluent limits. This schedule required that Gaston: 1) submit a preliminary engineering report by March 31, 1991; 2) submit final plans and specifications by September 1, 1991 for any upgrade to its wastewater treatment plant necessary to comply with the Phase II discharge limits; and 3) begin complying with the Phase II limits on June 1, 1992.

Gaston failed to meet the September 1, 1991 deadline for submitting final plans for the necessary plant upgrade, and requested an extension until November 15, 1991. On September 17, 1991, DHEC, relying on Gaston's representation that the extensionwould not affect the compliance date of June 1, 1992 for Phase II limits, modified Gaston's permit by granting the extension until November 15, 1991. In October 1991, Gaston requested another extension, and DHEC granted an extension until December 15, 1991, but did not modify Gaston's permit. On December 23, 1991, Gaston submitted plans detailing its intended improvements to the treatment plant.

In March 1992 and again in April 1992, Gaston requested an extension of the June 1, 1992 deadline for complying with the Phase II effluent limits. On June 15, 1992, DHEC issued a public notice discussing Gaston's proposal to extend that deadline until March 14, 1993. On March 13, 1993, DHEC modified Gaston's permit to require that Gaston comply with the Phase II limits by April 2, 1993. In mid-July 1992, Gaston began construction on the upgrade of its wastewater treatment plant.

On July 13, 1992, the plaintiffs sent Gaston a letter (the notice letter), as required by 33 U.S.C. § 1365(b), asserting that Gaston had violated and continued to violate its permit requirements "in at least the instances set forth in [an] attached chronological list of permit violations." The attached list identified eight violations of effluent limitations for flow, mercury, and polychlorinated biphenyls (PCBs), between July 1990 and September 1991.

The plaintiffs also asserted in the notice letter that "there appear to be instances in which the facility has failed to comply with the monitoring and reporting requirements of the permit. However, the extent of these violations cannot be determined from the information available." The letter also contained the plaintiffs' allegation that Gaston failed to meet the requirements of the schedule of compliance when Gaston did not submit its final plans and specifications by September 1, 1991.

The plaintiffs further asserted that based on reports from January 1991 through April 1992, Gaston's facility "is not in compliance with the Phase II limits [in effect as of June 1, 1992] because (1) the facility's discharges have consistently exceeded the Phase II limits and (2) the facility has not yet implemented remedial measures which would lower the pollution levels." Therefore, the plaintiffs asserted, in "June 1992, the facility will have violated its permit limits at least as to pH, copper, PCBs, and mercury."

The plaintiffs also stated in the notice letter that the "facility's history of noncompliance" indicated "a strong possibility that the facility will not comply" with any potentially revised schedule of compliance. Thus, the plaintiffs stated that they intended to file a citizen suit under the Clean Water Act to ensure Gaston's compliance with the conditions of its permit.

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