Maryland Waste Coalition v. SCM Corp.
| Citation | 616 F. Supp. 1474 |
| Decision Date | 04 September 1985 |
| Docket Number | Civ. A. No. R-85-1067. |
| Court | United States District Courts. 4th Circuit. United States District Court (Maryland) |
| Parties | MARYLAND WASTE COALITION, Plaintiff, v. SCM CORPORATION, Defendant. |
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John F. King and G. Macy Nelson, Baltimore, Md., for plaintiff.
Joseph F. Kaufman, Baltimore, Md., Charles F. Lettow and Elliot E. Polebaum, Washington, D.C., and Samuel Friedman, New York City, for defendant.
MEMORANDUM AND ORDER
Plaintiff filed this citizen's suit pursuant to the Clean Air Act, 42 U.S.C. § 7604(a). Currently before the Court is defendant's motion to dismiss complaint or stay proceedings. Plaintiff has opposed defendant's motion and the Court now rules pursuant to Local Rule 6 (D.Md.1985) without need for a hearing.
This action, a citizens suit brought by the Maryland Waste Coalition (hereinafter "the Coalition" or "the plaintiff"), is related to the case of United States v. SCM Corp., Civil Action No. R-85-9, which is also pending before this Court.1 Both actions allege continuing violations of the Clean Air Act by the defendant at its Adrian Joyce Works in Baltimore, Maryland.
The Clean Air Act (hereinafter "the Act"), 42 U.S.C. § 7401 et seq., established programs for pollution control involving state and local governments as well as the EPA. The Act provides, inter alia, that the EPA establish primary and secondary "national ambient air quality standards" ("NAAQS") for air pollutants having an adverse impact on public health or welfare.2 42 U.S.C. § 7409.
The Act also requires that each state adopt and submit to the EPA a "State Implementation Plan" ("SIP") to attain and maintain the federally promulgated NAAQS. 42 U.S.C. § 7407 and 7410. If the state-adopted SIP satisfies the requirements of the Act, it is approved by the EPA and may, thereafter, be enforced by the state, by the EPA, and, with certain conditions, by private citizens or citizen groups.
If the EPA finds that a person is in violation of a federally approved SIP, the EPA must give notice to both the alleged violator and to the state. If the violation extends beyond the thirtieth day following the required notification, the EPA may order compliance or bring a civil enforcement action. 42 U.S.C. § 7413(a)(1). Such a civil action may be brought in the district court of the United States for the district in which the violation occurred, and the court shall have jurisdiction to restrain the violation, to require compliance, and to assess civil penalties of up to $25,000 per day of violation. 42 U.S.C. § 7413(b).
If a citizen group finds a person in violation of a federally approved SIP, it may give notice of the alleged violation to the EPA, to the state, and to the alleged violator. If neither the EPA nor the state has commenced within sixty days of the notice a civil court action to require compliance with the SIP, the citizen group may bring a civil action against the alleged violator. 42 U.S.C. § 7604. If the EPA or the state has commenced a federal court action within sixty days to require compliance, the citizen group may intervene in that action as a matter of right. 42 U.S.C. § 7604(b)(1)(B).
In 1972, the EPA promulgated primary and secondary NAAQS for particulate matter and other air pollutants. See 40 C.F.R. §§ 50.6, and 50.7. Following the promulgation of these standards, Maryland adopted and the EPA approved a Maryland SIP which is published in the Code of Maryland Regulations (COMAR) and in the Code of Federal Regulations. See COMAR 190.18.06; 40 C.F.R. Subpart V §§ 52.1070-52.1117. The Maryland SIP, in pertinent part and with exceptions not here relevant, prohibits the discharge of particulate matter in amounts greater than 0.03 grains per dry standard cubic foot of exhaust gas, COMAR 10.18.06.03B(2)(a) (hereinafter the "particulate-matter standard"), and further prohibits the emission of sulfuric acid mist in a concentration greater than 70 micrograms per cubic meter of exhaust gas. COMAR 10.18.06.05c(2) (the "sulfuric-acid standard"). The Maryland SIP also prohibits the discharge of emissions, other than water in an uncombined form, that are visible to human observers. COMAR 10.18.06.02B (the "visible-emission standard").
The State of Maryland has also enacted air pollution control laws which are codified in Title 2 of Md. Health-Environmental Ann. (1982). Under Maryland law, the state's Department of Health and Mental Hygiene (hereinafter "the Department" or "the state agency") is required to establish state ambient air quality standards identical to the federal standards unless a political subdivision requests a more restrictive standard. § 2-302(c). The Department must also adopt emission standards to attain and maintain the ambient air quality standards. § 2-302(d). The Department may adopt other rules and regulations for the control of air pollution. § 2-301(a).
Under the enforcement provisions of the Maryland law, the Department may issue show cause and corrective orders, §§ 2-602 to 608, or bring enforcement actions in state court to enjoin alleged violations and impose civil penalties. § 2-609(a). The Department may recover in an enforcement action brought in the circuit court for any county up to $10,000 per violation per day.3 § 2-610(a). All proceedings under the Maryland air quality control law are to be brought by the Department, and "no person other than the State acquires actionable rights by virtue of that law." § 2-106.
Defendant SCM operates the Adrian Joyce Works in Baltimore, Maryland, at which plant defendant manufactures titanium dioxide, a white pigment used in paint, plastics, paper and other materials.
In May of 1982, the state agency conducted emission tests at defendant's plant. On January 5, 1983, a Notice of Violation and Show Cause Order was issued to defendant by the state agency. The notice alleged, based on the May 1982 tests and observations, that defendant was in violation of the state's particulate-matter, sulfuric-acid, and visible-emission standards. Defendant was informed by that notice of sanctions available under the Health-Environmental Article of the Maryland Code, and was ordered to show cause why a corrective order should not issue. Discussions ensued between the company and the state agency regarding the reliability of the testing procedures and whether defendant's facilities were in fact in compliance with the state standards.
Meanwhile, on April 20, 1984, the EPA issued a Notice of Violation to the defendant company based on tests conducted in December of 1983. The federal notice alleged six violations of the sulfuric-acid and particulate-matter standards in the Maryland SIP which had been federally approved pursuant to the Clean Air Act. The alleged violations concerned the operation of Calcining Kilns No. 2 and 3 at defendant's Adrian Joyce Works. The notice also informed defendant of enforcement actions which could be taken pursuant to the federal Act if the violations continued more than thirty days following the EPA notification.
In December of 1984, the state agency and the company reached an agreement to enter an administrative consent order with regard to the state's notice of violation. The EPA, aware of the agreement, filed suit in this Court against SCM on January 2, 1985. United States v. SCM, Civil Action No. R-85-9. The Consent Order between the state agency and the company4 was executed and effective on January 7, 1985.
The complaint in the EPA suit, predicated upon the federal Notice of Violation issued in April of 1984, alleges that the company has continued to violate the sulfuric-acid and particulate-matter standards in the operation of Kilns No. 2 and 3 for more than thirty days after the issuance of the Notice of Violation. The EPA seeks injunctive relief to compel defendant's compliance with the standards at issue, and further seeks the imposition of civil penalties under the Clean Air Act.5
On January 9, 1985, one week after the filing of the EPA suit, the Coalition mailed to SCM, to the EPA, and to state officials a 60-day notice of defendant's alleged violations of the Act's emission standards and limitations. The notice recited hundreds of violations of various standards in the Maryland SIP and included the allegations upon which the EPA suit was premised.
On January 11, 1985, the Coalition filed a motion to intervene in the EPA action. On March 1, 1985, it filed a supplemental motion to intervene which was granted by Memorandum and Order of August 14, 1985.
This action was filed by the Coalition on March 11, 1985. Brought pursuant to the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7604, the complaint incorporates by reference the allegations contained in the Coalition's 60-day notice of January 9, 1985. Plaintiff alleges that "neither the EPA or sic the State of Maryland has commenced and diligently prosecuted an action in a court of the United States to redress the Violations."6 Plaintiff seeks (1) a declaration that the defendant has violated the Act; (2) an injunction prohibiting defendant from continuing to violate the Act at its Baltimore plant; (3) an order providing that plaintiff be provided with copies of future reports which defendant may submit to the state or federal government regarding enforcement of the Maryland SIP; and (4) an award of costs and attorney's fees.
Defendant now moves to dismiss the complaint or, alternatively, to stay these proceedings during the performance period prescribed by the state administrative consent order.
The citizen-suit provision of the Clean Air Act provides, in pertinent part and with exceptions not here relevant, that any person7 may bring an action to enforce an emission standard, limitation or order under the Act unless the EPA or the state in which the violation occurs "has commenced and is diligently prosecuting a civil action in a court of the...
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