Menzel v. County Utilities Corp.

• Decision Date: 06 December 1979
• Docket Number: Civ. A. No. 77-725-N.
• Citation: 501 F. Supp. 354
• Parties: Martha M. MENZEL, Mary B. Rice, Barbara G. Racine, and Virginia W. Grubbs, Plaintiffs, v. COUNTY UTILITIES CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

501 F. Supp. 354

Martha M. MENZEL, Mary B. Rice, Barbara G. Racine, and Virginia W. Grubbs, Plaintiffs, v. COUNTY UTILITIES CORPORATION, Defendant.

Civ. A. No. 77-725-N.

United States District Court, E. D. Virginia, Norfolk Division.

December 6, 1979.

Patrick M. McSweeney, McSweeney & Stutts, Richmond, Va., for plaintiffs.

E. Leslie Cox, Breeden, Howard & MacMillan, Norfolk, Va., for defendant.

MEMORANDUM OPINION AND ORDER

CLARKE, District Judge.

Plaintiffs are all residents of the Birchwood Gardens area of the City of Virginia Beach, Virginia. They are recreational users of the Lynnhaven River and its tributaries, particularly Buchanan Creek adjacent to their respective homes. Defendant County Utilities Corporation (hereinafter "County Utilities") is a Virginia corporation which owns and operates a sewage treatment plant in the Birchwood Gardens area and discharges treated waste water into Buchanan Creek.

This matter is now before the Court on cross-motions for summary judgment by plaintiffs and defendant. Defendant's motion, filed July 19, 1979, asserts that a Final Decree entered June 8, 1979, by the Circuit Court of the City of Virginia Beach determined favorably to defendant the factual and legal claims alleged by plaintiffs in their amended complaint. Consequently, no genuine issue of material fact remains to be resolved, and County Utilities is entitled to summary judgment pursuant to Rule 56, Fed.R.Civ.P. Plaintiffs, on the other hand, seek partial summary judgment in their motion, filed August 6, 1979, contending that defendant unlawfully discharged waste water from July 1, 1977, to June 8, 1979. Plaintiffs further assert that the discharge permit as modified by the state Circuit Court's decree of June 8, 1979, violates federal statutory and constitutional standards. Before addressing the merits of these motions, the Court will briefly review the background of the case.

I.

This action arose under the provisions of the Federal Water Pollution Control Act (FWPCA) Amendments of 1972, 33 U.S.C. §§ 1251 et seq., which required every publicly-owned and privately-owned sewage utility in the United States to obtain a National Pollutant Discharge Elimination System (NPDES) permit no later than July 1, 1977. 33 U.S.C. §§ 1311, 1342.¹ Not only must the utility meet federal standards in order to obtain a NPDES permit, but section 301(b)(1)(C) of the FWPCA 1972 Amendments also requires that the utility meet any more stringent limitations established by state law or regulations:

(b) In order to carry out the objective of this chapter there shall be achieved —

. . . . .

(C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter.

33 U.S.C. § 1311(b)(1)(C).

The amended complaint, filed December 20, 1977, alleges that defendant "continues to discharge pollutants to the nation's waters from its Birchwood Gardens sewage treatment plant in violation of 33 U.S.C. § 1311." Amended Complaint at ¶ 16. In particular, the amended complaint charges that County Utilities has failed to comply with Special Standard "j,"² adopted by the Virginia State Water Control Board (hereinafter "Water Control Board") in 1966 and 1970, and has failed to connect to central sewage treatment facilities by July 1, 1977, as required by its NPDES permit.³

Defendant holds NPDES Permit No. Va. 0060691, with an effective date of November 15, 1976, and an expiration date of June 30, 1982. The permit authorizes a daily discharge of 0.8 million gallons of treated waste water into the Buchanan Creek. The permit further required that defendant terminate this discharge and connect to central sewage treatment facilities by July 1, 1977.⁴ The defendant appealed to the Circuit Court of Virginia Beach, Virginia, on December 1, 1976, challenging both the permit requirement that it connect to central facilities by June 1, 1977, and the enforcement against it of Special Standard "j."

By an August 21, 1978, Order of this Court, discovery in this case was ceased, pending the outcome of the case in the Virginia Beach Circuit Court. On April 5, 1979, the Honorable Henry L. Lam, Judge of the Circuit Court of the City of Virginia Beach, Virginia, issued an Opinion in the case of County Utilities Corporation v. Commonwealth of Virginia, ex. rel. State Water Control Board, At Law No. L-4139, which he incorporated by reference into his Final Decree of June 8, 1979.

Judge Lam found that "the State Water Control Board's Special Standard `j' objective for Nitrogen removal to a level of 0.5 milligram per liter of sewage treatment plant effluent is neither technologically achievable nor economically feasible, and, therefore, is void and unenforceable." Final Decree at 2. Not only did the state judge declare Special Standard "j's" nitrogen objective⁵ "void and unenforceable," but he modified County Utilities' NPDES permit so as to remove the requirement from the permit that County Utilities connect their sewage treatment plant discharges to the central facilities of Hampton Roads Sanitation District.⁶ Final Decree at 2 with attached modified Permit No. VA. 0060691. This modification was made effective back to November 15, 1976, to continue through the duration of the permit to June 30, 1982. Id. Finally, Judge Lam made sure that defendant's modified permit complied with secondary treatment requirements. As he stated in his Opinion of April 5, 1979, at page 2: "10. Secondary Treatment represents that level of sewage treatment required by the federal government; this level of treatment is presently required of County, Kempsville and HRSDC." Thus, County Utilities' modified NPDES permit does comply with federal requirements, and plaintiffs have not argued otherwise.

II.

A federal court must accord full faith and credit to a judgment entered by a state court of competent jurisdiction. 28 U.S.C. § 1738.⁷ In effect, then, the "federal court presented with a state court judgment is required to give that judgment the same force and conclusive effect as it has in the state in which it was rendered." Winters v. Lavine, 574 F.2d 46, 54 (2d Cir. 1978), quoting, Mitchell v. National Broadcasting Co., 553 F.2d 265, 274 (2d Cir. 1977). See Davis v. Davis, 305 U.S. 32, 39-40, 59 S.Ct. 3, 83 L.Ed. 26 (1938) (federal court must give same effect to state court decision as would be given by another state court). Therefore, it becomes necessary to examine the res judicata effect of the state court judgment within the state itself. See Riley v. New York Trust Co., 315 U.S. 343, 349, 62 S.Ct. 608, 86 L.Ed. 885 (1942); Davis v. Davis, supra.

This Court is well aware that Virginia courts invoke the doctrine of res judicata to bar relitigation of an issue by a party that was also a party to the prior litigation. E. g., Bates v. Devers, 214 Va. 667, 202 S.E.2d 917, 920-22 (1974). See Moore v. Allied Chemical Corp., 480 F.Supp. 364, n. 4 and accompanying text (E.D.Va. 1979). The Court is further cognizant of the fact that the state court litigation was between County Utilities and the Commonwealth of Virginia, ex rel. the State Water Control Board, and that the plaintiffs in this case were not named parties in the state proceeding. However, under the doctrine of parens patria, a state is deemed to represent all of its citizens, when the state is a party in a suit involving a matter of sovereign interest. See, e. g., New Jersey v. New York, 345 U.S. 369, 73 S.Ct. 689, 97 L.Ed. 1081 (1953); Georgia v. Pennsylvania R. R., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051, rehearing denied, 324 U.S. 890, 65 S.Ct. 1018, 89 L.Ed. 1437 (1945); Environmental Defense Fund, Inc. v. Higginson, 631 F.2d 738 (D.C.Cir. 1979). There is a presumption that the state as parens patria will represent adequately the position of its citizens. Id.

Although the foregoing cases in regard to the doctrine of parens patria generally deal with citizens' petitions to intervene and, therefore, are distinguishable from the present case, the underlying principle is still applicable to this case. First, the meaning, purpose, and effect of state statutes and regulations relating to the discharge of sewage into state waters are matters of "sovereign interest." Moreover, plaintiffs do not contend that the Commonwealth of Virginia did not adequately represent their interests in the state court; rather, they contend that they themselves were not parties to the state court litigation and, therefore, they are not bound by the Final Decree of the Virginia Beach Circuit Court. The doctrine of parens patria, however, renders this argument fallacious because the plaintiffs by implication were parties to the state court proceeding⁸ and currently are bound by that decision.

More importantly, 28 U.S.C. § 1652 provides:

State laws as rules of decision

The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

Therefore, under § 1652, this Federal Court must follow the interpretation given Virginia law by a Virginia court, absent convincing evidence that the law of the state is otherwise. See, e. g., Six Companies of California v. Joint Highway District No. 13, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114 (1941).

In regard to the case presently before this Court, the Circuit Court of the City of Virginia Beach held that §§ 62.1-44.4 et seq. of the Code of Virginia 1950, as amended, gave the State Water Control Board no power to enforce the unattainable effluent limitations...