Natural Res. Coun. of Me. v. International Paper, No. CV-05-109-B-W.

Decision Date28 March 2006
Docket NumberNo. CV-05-109-B-W.
Citation424 F.Supp.2d 235
PartiesNATURAL RESOURCES COUNCIL OF MAINE, Plaintiff, v. INTERNATIONAL PAPER COMPANY, Defendant.
CourtU.S. District Court — District of Maine

Benjamin W. Lund, Peter J. Brann, David Swetnam-Burland, Brann & Isaacson, Lewiston, ME, for Plaintiff.

James T. Kilbreth, Verrill & Dana, Portland, ME, for Defendant.

ORDER ON DEFENDANT INTERNTIONAL PAPER COMPANY'S MOTION TO DISMISS THE COMPLAINT

WOODCOCK, District Judge.

Nearly two decades after International Paper Company applied to the Environmental Protection Agency to renew its pollution discharge permit, the Maine Department of Environmental Protection finally approved it. All the while, under the terms of a 1985 Environmental Protection Agency (EPA) permit, International Paper (IP)'s Jay, Maine paper mill continued to discharge pollutants into the Androscoggin River. Faced with interminable governmental inertia, in 2005, the Natural Resources Council of Maine (NRCM) filed a citizen law suit against IP, claiming that it was discharging without a valid permit and seeking to enjoin and civilly punish it for doing so.1 This Court grants IP's Motion to Dismiss, because it concludes that NRCM failed to give proper notice of some legal theories, that its request for an injunction is moot, and that, in any event, EPA's 1985 permit remained effective until the Maine Department of Environmental Protection (MDEP) issued the new permit in 2005.

I. FACTUAL BACKGROUND2
A. The Parties3

Headquartered in Augusta, Maine, Plaintiff NRCM is a non-profit membership organization, which has been working to ensure the protection and conservation of Maine's unique natural and environmental resources for more than forty-five years.4 Compl. ¶ 10. Its membership includes thousands of Maine residents, including persons who rely on the Androscoggin River for recreational, economic, aesthetic, and community benefits. Id.

Headquartered in Stamford, Connecticut, Defendant IP is a New York corporation which owns and operates a paper mill along the Androscoggin River in Jay, Maine. Id. ¶¶ 13, 20. The Jay mill can produce 2,120 tons of pulp and paper products per day and, in the summer of 2004, discharged on average 5,413 pounds of biochemical oxygen demand (BOD) and 162 pounds of phosphorus into the Androscoggin River daily. Id. ¶ 20. In addition to its discharge of BOD and phosphorus, the mill discharged on average 13,832 pounds of total suspended solids (TSS) into the river each day in 2004.5 Id.

B. The Clean Water Act, the Permitting Process, and Citizen Suits

Originally enacted in 1948, the Federal Water Pollution Control Act (commonly referred to as the Clean Water Act) was intended to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Clean Water Act (CWA) provides that "the discharge of any pollutant by any person shall be unlawful" unless, among other things, the discharge is made pursuant to and is authorized by a National Pollutant Discharge Elimination System (NPDES) permit. Id. §§ 1311(a), 1342(a). The CWA defines the term "pollutant" broadly to include "solid waste" and "chemical wastes," id. § 1362(6), and forbids "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12). Based on the allegations in the Complaint and the CWA's statutory definitions, IP would be required to obtain a NPDES permit before making any discharges of BOD, TSS, or phosphorus into the Androscoggin River.

The CWA authorizes the EPA to issue NPDES permits limiting and setting conditions for the discharge of pollutants. Id. §§ 1311, 1342. Section 402(b) of the Act provides that a state may establish its own permit program, and after receiving EPA's approval, the state may issue NPDES permits. Id. § 1342(b). On January 12, 2001, EPA approved the state of Maine's NPDES program covering many Maine waters, including the Androscoggin, and MDEP became the permitting authority for IP's discharges.

In addition to providing for enforcement by state agencies and EPA, the CWA allows private parties to enforce its provisions, including the prohibition of unpermitted discharges in § 1311(a), against alleged violators in so-called "citizen suits." Id. §1365(a)(1), (f). An aggrieved plaintiff may bring a civil action for specific relief, such as the imposition of compliance measures or civil penalties payable to the United States Treasury, id. § 1365(a), and may recover attorney fees. Id. § 1365(d). At least sixty days prior to filing, the prospective plaintiff must provide notice of its claims to the potential defendant, EPA, and the state in which the violations allegedly occurred. Id. § 1365(b)(1)(A). If a competent state or federal enforcement agency brings a civil enforcement action against the defendant before the citizen-complaint is filed, or an administrative enforcement proceeding prior to the plaintiff's notice of intent letter, the citizen suit is preempted and must be dismissed. Id. §§ 1319(g)(6), 1365(b)(1)(B).

C. 1985-2001: IP's NPDES Permitting History

On June 18, 1985, IP applied to EPA to renew its original NPDES permit. Compl. ¶ 24. In response, EPA issued a one-year renewal permit to IP (the 1985 permit), which became effective on September 30, 1985 and was due to expire on September 30, 1986. Id. ¶¶ 24-25. On April 2, 1986, prior to the expiration of the 1985 permit, IP applied for renewal of the 1985 permit. Id. ¶ 25. Pending decision on its 1986 renewal application, IP continued to discharge pollutants according to the terms of its 1985 permit. Id.

EPA took no action on IP's 1986 renewal application until May 1, 1992, when it issued a new five-year permit to IP (the 1992 permit). Id. On June 8, 1992, IP requested an evidentiary hearing to challenge some terms and conditions in the 1992 permit. Id. ¶ 26. Under the regulations then in effect, the Regional Administrator of EPA was required to grant or deny a request for an evidentiary hearing within thirty days of the deadline to file such a request. Id. EPA, however, took no action on IP's request until July 14, 2000—more than eight years later. Id. ¶¶ 26-27. While IP awaited a response from EPA, it continued to discharge pollutants according to the 1985 permit.

Receiving no response, IP applied for renewal of the 1992 permit on August 1, 1997.6 Id. ¶ 27. On July 14, 2000, EPA responded in writing to both IP's hearing request on the 1992 permit and its 1997 renewal application.7 See Def's Mot. to Dismiss, exh. A. The letter stated, in pertinent part:

This letter pertains to your request for an evidentiary hearing dated June 5, 1992 regarding the NPDES permit for [IP]. As you know, that request was neither granted nor denied, and [IP] has been subject to the terms and conditions of its previously issued [1985] permit.

. . . . .

Because more than five years have passed since the May 30, 1992 permit was issued, we believe that the permit has expired and that the associated request for an evidentiary hearing is no longer pending. To avoid any possible ambiguity on the status of the 1992 permit and the hearing request, we are hereby withdrawing the permit pursuant to 40 C.F.R. § 124.19(d) (65 Fed.Reg. at 30911).8

According to our records, [IP] has reapplied for a new permit. The new NPDES permit will be reissued either by EPA New England or by the Maine Department of Environmental Protection (if the State receives approval of its pending request to assume implementation of the NPDES program). [IP] will retain full rights to appeal conditions in any such reissued permit.

Id.

On January 12, 2001, EPA signed the National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Maine and the United States Environmental Protection Agency Region 1(MOA), which officially transferred responsibility for NPDES permitting from EPA to MDEP. Compl. ¶ 28; Def's Mot. to Dismiss at 3. Prior to this delegation, dischargers were required to secure both a NPDES permit from EPA and a state waste water discharge license pursuant to 38 M.R.S.A. §§ 413-571. Def's Mot. to Dismiss at 3. As a result of delegation, MDEP, not EPA, became responsible for NPDES permitting and it now issues a single combined state and federal discharge permit. Id. Permits issued by the state of Maine through MDEP are referred to as Maine Pollutant Discharge Elimination System (MEPDES) permits. Id.

D. The Notice of Intent to File Suit and the Lawsuit

On May 26, 2005, counsel for NRCM sent IP a "Notice of Intent to File Suit under 33 U.S.C. § 1365(a)(1)," warning IP of NRCM's intention to initiate a lawsuit for IP's allegedly illegal discharge of "pollutants [into] the Androscoggin River from its pulp and paper mill in Jay, Maine ... without a [NPDES] permit." Compl., att.

1. The letter stated, in pertinent part:

We represent [NRCM] ..., and [its] concerned members who look to the Androscoggin River ("River") for recreational, economic, aesthetic, and community value. Pursuant to section 505(b) of the Federal Water Pollution Control Act (the "Clean Water Act" or the "Act"), this letter provides notice of NRCM's ... intent to file suit against [IP] under section 505(a)(1) of the Act, 33 U.S.C. § 1365(a)(1), for discharging pollutants to the Androscoggin River from its pulp and paper mill in Jay, Maine ("Jay mill" or the "mill") without a [NPDES] permit.

Discharges from the Jay mill were last permitted in 1985, under a NPDES permit that expired in 1986.[EPA] continued that permit past its expiration date, even though compliance with its terms promoted the continued degradation of the Androscoggin River. Also, on January 12, 2001, when the State of Maine assumed responsibility for NPDES permits governing discharges into Maine waters, even IP's expired permit ceased to be operative. See 40 C.F.R. § 122.6(d). Since at least that date, all of the Jay mill's discharges of pollutants to the...

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