Montgomery Environmental Coalition v. Fri

• Decision Date: 31 October 1973
• Docket Number: Civ. A. No. 1307-73.
• Citation: 366 F. Supp. 261
• Parties: MONTGOMERY ENVIRONMENTAL COALITION et al., Plaintiff, v. Dr. Robert W. FRI et al., Defendants.
• Court: U.S. District Court — District of Columbia

366 F. Supp. 261

MONTGOMERY ENVIRONMENTAL COALITION et al., Plaintiff, v. Dr. Robert W. FRI et al., Defendants.

Civ. A. No. 1307-73.

United States District Court, District of Columbia, Civil Division.

October 31, 1973.

COPYRIGHT MATERIAL OMITTED

Robert L. Ackerly, Washington, D. C., for plaintiffs.

Warren K. Rich, Sp. Asst. Atty. Gen., Dept. of Natural Resources, for Governor Marvin Mandel, Md. Dept. of Natural Resources, Md. Dept. of Health and Mental Hygiene and Md. Water Resources Admin.

Richard S. McKernon, County Atty., Montgomery County, Rockville Md., for Montgomery County Council.

C. Francis Murphy, Corporation Counsel, John C. Salyer and Iverson O. Mitchell, III, Asst. Corporation Counsel, Washington, D. C., for Mayor Walter E. Washington and D. C. Dept. of Environmental Services and the Environmental Protection Agency.

J. Eugene Cleary, Hyattsville, Md., for defendant Washington Suburban Sanitary Commission.

MEMORANDUM OPINION AND ORDER

JOHN LEWIS SMITH, Jr., District Judge.

This cause of action is based on violations of certain water quality standards which plaintiffs claim are actionable under the Federal Water Pollution Control Act Amendments of 1972 (1972 Act), 33 U.S.C. § 1251 et seq. (Supp. II, 1973). Plaintiffs, who comprise two community groups and the District of Columbia, bring this suit pursuant to the "Citizen Suits" provision of the 1972 Act, 33 U.S.C. § 1365(a). The complaint is for declaratory and injunctive relief ordering defendants to refrain from approving, permitting or authorizing further sewer hookup permits which would result in sewage discharges affecting the water quality of the Potomac River. The case is now before the Court on motions to dismiss filed by seven of the eight defendants against the two community groups.¹ For reasons set forth below, this Court grants the motions to dismiss filed by defendants Montgomery County Council, James P. Gleason, County Executive, and the Department of Natural Resources for the State of Maryland, and denies the motions to dismiss filed by the remaining four defendants.

I STANDING

Defendants advance that in view of Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), plaintiff community groups lack standing in this case because they have failed to allege that either they or their members individually use the Potomac River for any purpose, much less that they use it in any way that would be adversely affected by the defendants' actions.

The statutory grant relied on for standing in Sierra is § 10 of the Administrative Procedure Act, 5 U.S.C. § 702, which provides in part:

"A person . . . adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof."

In the present case, 33 U.S.C. § 1365(a) allows "any citizen" to bring a civil suit. Section 1365(g) defines citizen as:

". . . a person or persons having an interest which is or may be adversely affected." (emphasis added)

While the statutory language relied on for standing in the instant case is arguably broader in scope than that relied on in Sierra, the Court takes note of congressional intent behind section 1365 (g) which sought to base standing requirements on those pronounced in Sierra.² Applying the Sierra guidelines to plaintiff community groups, the Court finds that standing has been established.

The two community groups allege in their complaint that their members are citizens of the District of Columbia and Montgomery County, Maryland, two jurisdictions which are contiguous to the flow of the Potomac River. Unlike the plaintiff in Sierra, the instant plaintiffs are groups of citizens who claim to live within the environs of the natural object they seek to protect. General interest in the aesthetic and environmental well-being of a river running past one's community area is obviously on a higher plane than the interest a national environmental group composed of non-resident citizens or users might properly claim. It would be an unjustified presumption on the Court's part to think that none of the aesthetic and recreational values of the plaintiffs will be lessened by increased pollution of the Potomac River when the river itself passes within the midst of plaintiffs' community.

II JURISDICTION

Jurisdiction is claimed under the citizen suit provision of the 1972 Act, 33 U.S.C. § 1365(a)(1), which permits citizen suits for violation of (A) an effluent standard or limitation under the Act, or (B) an order issued by the Administrator of the Environmental Protection Agency or a State with respect to such standards or limitations. Plaintiffs contend that water quality standards for the District of Columbia and Maryland promulgated under the Water Quality Act of 1965 (1965 Act), 33 U.S.C. § 1151 et seq., constitute effluent standards or limitations pursuant to § 1365 (a)(1)(A), and that the two agreements to which the District and Maryland are signatories, constitute a state order within the scope of § 1365(a)(1)(B).³

The 1972 Act creates an enforcement policy built around specific effluent limitations as opposed to the water quality standards of the 1965 Act. A comparison of the two Acts indicates that water quality standards refer to maximum concentrations of pollutants in a body of water while effluent standards refer to absolute limitations on pollutants discharged from a particular source. The former are concerned with the quality of a water body in general while the latter emphasize the quality of a discharge source entering a water body.

Notwithstanding this apparent distinction in water quality terminology, nor the fact that 33 U.S.C. § 1365(a)(1) restricts citizen suits to violations of effluent standards or limitations, this Court concludes that section 1365(a) does confer jurisdiction on plaintiff community groups.

An effluent standard or limitation is defined in 33 U.S.C. § 1365(f)(1) as:

". . . effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title . . . ."

Section 1311(a) provides:

"Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful."

The exceptions named in section 1311(a) deal with the establishment of effluent standards, timetables for their adoption, and a discharge permit system for their regulation. The combined effect of these exceptions is to gradually constrain the legally permissible limits of pollutants in discharge sources until a total elimination of such pollutants is reached by 1985.⁴

The fact that such limitations have not yet been promulgated does not mean that section 1311(a) cannot be violated. Section 1313 of Title 33 United States Code carries over and extends the water quality standards program of the 1965 Act. Taking into consideration the statutory language of section 1313, its legislative history,⁵ its position as a predecessor to the stricter controls of the 1972 Act, the remedial nature of both Acts, and the Congressional declaration of goals and policy behind the 1972 Act,⁶ it is this Court's firm conviction that water quality standards promulgated pursuant to the 1965 Act are to constitute a floor level of quality until the stiffer effluent limitations of the 1972 Act can be implemented. Consequently, the discharge of a pollutant which contributes to the violation of an existing water quality standard is clearly a violation of 33 U.S.C. § 1311(a).

Since plaintiffs have properly alleged an unlawful act under section 1311(a), the next issue is whether the alleged act was one occurring on or after July 1, 1973. An original complaint was filed by the two community groups on June 28, 1973, in which the District of Columbia was a named defendant. On October 3, 1973, an amended complaint was filed under the Court's fiat in which the District was realigned as a plaintiff. In passing on the issue of whether the effective date of the suit is June 28th or October 3rd, the Court notes that paragraph 15 of the amended complaint alleges that sixty days have passed since plaintiffs gave notice of the alleged violation to all necessary and required parties. The passage of sixty days had not transpired at the time the original complaint was filed. Since this new allegation relates to an event which "happened since the date of the pleading sought to be supplemented," Rule 15 (d), Federal Rules of Civil Procedure, is controlling and the new pleading should be considered a supplemental one. The erroneous characterization of the corrected pleading as an "amended complaint" is immaterial. United States for Use of Atkins v. Reiten, 313 F.2d 673, 674 (9th Cir. 1963). The fact that the supplemental pleadings introduce a new cause of action not alleged in the original complaint should not bar their introduction. Rule 15(d) expressly provides:

"Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense."

It is within the sound discretion of the Court to grant leave for correction of pleadings as justice may require. Atkins, supra; Lodge 1858, American Federation of Gov. Emp. v. Paine, 141 U.S. App.D.C. 152, 436 F.2d 882, 898 (1970).

In the instant case, the violations alleged in the supplemental pleadings do not create surprise nor prejudice the rights of the defendants as they are a continuation of the same violations alleged in the June 28th complaint. In addition, the purpose of the July 1, 1973 effective date set forth in section 1365 (f)(1) is, according to its legislative history, to give the "State and Federal governments" sufficient time to "develop fully, and execute the authority contained" in section 1342 (discharge permit program).⁷ Obviously, such congressional intent is in no way frustrated by the supplemental pleadings especially since they are based on pre-1972 Act water quality standards. Accordingly, leave is granted sua sponte for the supplemental...