Natural Res. Defense Coun. v. Outboard Marine Corp.

• Decision Date: 12 July 1988
• Docket Number: No. 87C 4648.,87C 4648.
• Citation: 692 F. Supp. 801
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff, v. OUTBOARD MARINE CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Illinois

692 F. Supp. 801

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff, v. OUTBOARD MARINE CORPORATION, Defendant.

No. 87C 4648.

United States District Court, N.D. Illinois, E.D.

July 12, 1988.

COPYRIGHT MATERIAL OMITTED

James F. Simon, Nora J. Chorover, Natural Resources Defense Council, Inc., New York City, Lee A. Freeman, Jr., Freeman, Freeman & Salzman, P.C., Chicago, Ill., for plaintiff.

Richard J. Kissel, Erica L. Dolgin, Gardner, Carton & Douglas, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Natural Resources Defense Council, Inc. ("NRDC") has sued Outboard Marine Corporation ("OMC") for violations of the statute commonly referred to as the Clean Water Act (the "Act"), 33 U.S.C. §§ 1251-1376.¹ NRDC has filed under the Act's "citizen suit" provision (Section 1365) for claimed violations by OMC of its National Pollutant Discharge Elimination System ("NPDES") permit.

NRDC now seeks summary judgment under Fed.R.Civ.P. ("Rule") 56 on the issue of liability, plus a permanent injunction against further violations. OMC responds with a cross-motion seeking either summary judgment or dismissal or stay of the present action. For the reasons stated in this memorandum opinion and order, this Court:

1. denies OMC's motion to dismiss or stay the present action;

2. denies OMC's summary judgment motion;

3. grants NRDC's summary judgment motion in part, but denies its motion as to claimed violations involving polychlorinated biphenyls ("PCBs"); and

4. grants NRDC's request for an injunction against further violation of the permit's restrictions on the level of total suspended solids ("TSS") in, and the pH balance of, OMC's discharges.

Facts²

NRDC is a non-profit membership corporation with over 2,600 members in Illinois and 1,000 in Wisconsin. OMC is a Delaware corporation that manufactures, among other products, outboard and inboard motors. One of OMC's manufacturing facilities is located in Waukegan, Illinois. That facility discharges cooling water and storm water runoff into Lake Michigan, Waukegan Harbor and the North Ditch, a tributary of Lake Michigan (D. 12(e) ¶ 2³). NRDC attacks 56 discharges by OMC at the Waukegan plant since April 1984.⁴

NRDC satisfied the jurisdictional prerequisites to a citizen suit under Section 1365 by giving more than 60 days' notice of the alleged violations to the United States Environmental Protection Agency ("EPA"), the Illinois Environmental Protection Agency ("IEPA") and OMC. When neither regulatory body commenced a civil or criminal action against OMC, NRDC became entitled to file suit (see Section 1365(b)(1)(B)).

Effluent discharges into navigable waters are strictly regulated by the Act. Such discharges must comply with any NPDES permit issued by EPA, or by the relevant state agency when EPA has delegated that responsibility to the state. In this case IEPA originally issued an NPDES permit to OMC on September 29, 1981, then reissued the permit in modified form on September 15, 1983. Under the permit OMC was required to submit monthly Discharge Monitoring Reports ("DMRs") indicating OMC's compliance (or noncompliance) with the appropriate effluent standards. Those DMRs form the basis for all NRDC's claims of violations.

NRDC's charges deal with three of the effluent standards (or "parameters") established by the permit. Most of the claimed violations involve PCBs. There is a dispute as to what restrictions the permit imposed in that respect:

1. NRDC maintains the permit imposed a strict limitation on PCBs of one part-per-billion (ppb),⁵ both as a daily maximum and as a ceiling on average daily discharges over each 30-day period at five separate discharge locations (or "outfalls").

2. OMC contends the 1.0 ppb limitation was not an enforceable numerical limitation on PCB discharges but must be read in conjunction with the permit's "Special Condition 15," which (a) required OMC to institute a "best management practices" ("BMP") program governing PCB discharges and (b) allowed for possible modification of the effluent standard if the BMP program could not meet the 1.0 ppb standard.

NRDC also charges OMC has violated the permit limits for the discharge of TSS, a measure of the "particulate matter, both organic and inorganic, in water" (P.Mem. I-10). On that score the parties agree that OMC was limited to a 15 milligram per liter ("mg/l") standard for daily maximum discharges at two of its outfalls (P. 12(e) ¶ 6, D. 12(e) ¶ 7).

Finally NRDC claims violations of the standards set by OMC's permit for the pH balance (a measure of the alkalinity or acidity level) of OMC's discharges at several of the outfalls.⁶ In that respect the parties dispute whether the pH limits applied at the relevant times to outfalls 015 and 016.

So much, then, for the nature of NRDC's charges here. To return to the relevant sequence of events, after IEPA reissued the NPDES permit in September 1983 OMC proceeded to implement a BMP program (which was approved by IEPA) to control PCB discharges (D. 12(e) ¶ 9). OMC contends its BMP program, while able to achieve significant PCB discharge reductions, was unable to guarantee a 1.0 ppb standard on a daily basis (id.). OMC was also concerned that at such low levels of concentration⁷ the current monitoring technology could not offer accurate readings of the true PCB level in OMC's discharges (D.Mem. I-37-38). On April 18, 1984 OMC notified IEPA it could not meet its PCB target through its BMP program, and on September 6, 1984 it requested modification of the PCB standard to 10.0 ppb (D. 12(e) ¶ 9). OMC apparently received no response from IEPA to that modification request before the permit expired at the end of June 1986.

In September 1986 IEPA issued a "notice and fact sheet" for a renewed discharge permit for OMC, proposing a PCB standard of 1.0 ppb without a BMP special condition. OMC objected to omission of the BMP provision, while EPA objected to the standard itself, proposing instead a one part-per-trillion (ppt) limit. When IEPA reissued OMC's permit effective October 14, 1987 (D.Ex. B-1), it did not include the BMP program special condition and called for a staged reduction in the PCB limit:

1. Through August 1, 1991 the level remained at 1.0 ppb (id., at 2-3).

2. From then until the permit's expiration on August 1, 1992 the limit would be reduced to 0.1 ppb (id., at 4-5).

Special Condition 1 to the permit told OMC the final PCB target was set at 1.0 ppt, but that goal was not enforceable during the life of the permit (id., at 6).

On October 14, 1987 OMC appealed to the Illinois Pollution Control Board ("Board"). It challenged the numerical PCB limits, including the elimination of the BMP special condition, and the continued restrictions on TSS discharges at outfalls 015 and 016 (D.Ex. B, at 6-8). Its appeal also attacked Board's denial of OMC's earlier request for modification of the 1983 permit (id., at 10). OMC tells this Court IEPA has not yet set a hearing date on the appeal, but Board has scheduled a decision for November 1, 1988 (D. 12(e) ¶ 12).

Contentions of the Parties

NRDC argues that OMC's DMRs have conclusively admitted over 50 violations of the permit since April 1984. NRDC therefore seeks a declaration that OMC has violated the Act, a determination of OMC's liability and a permanent injunction against further violations.

OMC responds both with threshold attacks on this Court's consideration of the case and with counterassertions on the merits. On the first score OMC says:

1. NRDC lacks standing to pursue a citizen suit against OMC.

2. This action should be dismissed or stayed under the doctrines of primary jurisdiction or abstention.

3. NRDC's challenges to PCB discharges and pH level violations should be dismissed for lack of jurisdiction under Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., ___ U.S. ___, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) because those violations are neither ongoing nor intermittent.

4. Section 1365's citizen suit provisions violate separation of powers principles by giving private parties outside the Executive Branch responsibility for the execution of law.

On the merits OMC urges:

1. OMC is entitled to summary judgment on the PCB discharges because it has complied with the permit restrictions, which do not impose an enforceable numerical limit.

2. If not, NRDC's motion for summary judgment as to PCBs should be denied because of the existence of factual issues as to whether violations of any PCB limits have occurred (OMC points to the problem of monitoring variability and double-counting of eight alleged violations by NRDC⁸).

3. Even if this Court finds OMC has violated permit restrictions, no injunctive relief should be granted.

Standing

OMC's first preemptive strike is an attack on NRDC's standing to sue. OMC says the injury NRDC and its members allege is insufficient to satisfy standing doctrines in areas such as the existence of any actual harm sustained by them, the connection of any such claimed harm to OMC and the potential redressability of such harm. OMC also contends NRDC's standing is undermined because the organization did not communicate with the individual members now identified in support of its standing until after NRDC had filed suit.

Article III limits federal courts to the resolution of actual cases or controversies — a restriction that in part incorporates the notion that litigants must have a sufficient connection to the tendered dispute. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted) summarized the standing requirements:

At an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," ... and that the injury "fairly can be traced to the

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