Proffitt v. Rohm & Haas
| Citation | 850 F.2d 1007 |
| Decision Date | 26 July 1988 |
| Docket Number | No. 87-1563,87-1563 |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
| Parties | , 57 USLW 2067, 18 Envtl. L. Rep. 21,165 Raymond PROFFITT, Appellant, v. ROHM & HAAS. |
Randall J. Brubaker (argued), Beth Oswald, Philadelphia, Pa., for appellant.
Hershel J. Richman (argued), Thomas J. Stukane, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for appellee.
Before SLOVITER, STAPLETON and MANSMANN, Circuit Judges.
Appellant Raymond Proffitt brought this citizen suit against Rohm & Haas for violations of the federal Clean Water Act, 33 U.S.C.A. Secs. 1251-1376 (West 1986 & Supp.1988), and for violation of Pennsylvania's Clean Streams Law, 35 Pa.Stat.Ann. Secs. 691.1-.1001 (Purdon 1977 and Supp.1988). Proffitt alleged that Rohm & Haas' discharges between 1980 and 1985 from "Outfall 009" at its Bristol, Pennsylvania plant exceeded the limits imposed by the National Pollutant Discharge Elimination System (NPDES) permit issued to it by the Environmental Protection Agency (EPA) for Total Suspended Solids (TSS) (the amount of solid matter suspended in the water) and also fell outside the required range set for the pH of the discharge (its acidity or alkalinity) and that they were also in excess of state law limits. Rohm & Haas responded through a motion for summary judgment that it was not in violation of its NPDES permit as to TSS or pH because these limitations had been stayed by the EPA pursuant to a 1976 stipulation which had been incorporated into an amended NPDES permit issued to Rohm & Haas at that time. The district court granted Rohm & Haas' motion for summary judgment on that ground. 668 F.Supp. 436.
Proffitt appeals, arguing alternatively that EPA's stay of enforcement was not valid, or, if valid, was not effective to bar a citizen suit under the Clean Water Act. Proffitt also appeals from the district court's adverse judgment on his pendent state law claims.
Under the Federal Water Pollution Control Act Amendments of 1972, generally referred to as the Clean Water Act, 33 U.S.C.A. Secs. 1251-1376, it is illegal to discharge pollutants into the navigable waters of the United States without a permit issued under the National Pollutant Discharge Elimination System (NPDES) unless one of the other statutory exceptions applies, 33 U.S.C.A. Sec. 1311(a). As a condition to the NPDES permit, the statute requires "certification" by the state where the discharge originated that the discharge complies with applicable state and federal effluent limitations and water quality standards, 33 U.S.C.A. Sec. 1341. The state may set additional limitations which are then included in the NPDES permit. 33 U.S.C.A. Sec. 1341(d). Because the resolution of this case depends on the existence and effect of any limitations imposed by the NPDES permits issued to Rohm & Haas, a rather extended examination of the permits issued to it is required.
On September 30, 1974, Rohm & Haas was issued an NPDES permit by the EPA, effective October 30, 1974 (referred to hereafter as the 1974 permit). That 1974 permit set effluent limitations based on four general, commonly-used indicia of water quality, i.e., TSS, pH, chemical oxygen demand (COD), and biochemical oxygen demand (BOD). 1
The Pennsylvania Department of Environmental Regulation (PaDER) set additional effluent limitations in its certification for Rohm & Haas' permit which included, inter alia, limitations on TSS and pH. 2 That certification was later amended by the state on August 22, 1975 to impose more stringent limitations on Rohm & Haas. 3
Rohm & Haas then appealed both the EPA limits in the NPDES permit and the PaDER limits set out in the certification; the appeal on the EPA limits was made in the form of a request for an adjudicatory hearing to that agency. See 40 C.F.R. Sec. 125.36 (1975). The appeal of the state certification was taken to the Pennsylvania Environmental Hearing Board (EHB), because only the state may review the limits which it sets through the certification process. See Lake Erie Alliance for the Protection of the Coastal Corridor v. U.S. Army Corps of Engineers, 526 F.Supp. 1063, 1074 (W.D.Pa.1981), aff'd mem., 707 F.2d 1392 (3d Cir.), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983); Roosevelt Campobello Int'l Park Comm'n v. United States E.P.A., 684 F.2d 1041, 1056 (1st Cir.1982).
The EPA adjudicatory hearing to contest the limits in the 1974 NPDES permit which was requested by Rohm & Haas was never held. 4 Instead, in 1976 the EPA, the PaDER, and Rohm & Haas stipulated to an agreement, certified by an administrative law judge, under which Rohm & Haas withdrew its request for such a hearing. Under the terms of this stipulation, the 1974 NPDES limitations on discharge of TSS at Outfall 009, expressed in terms of kilograms per day, were to be modified to incorporate those imposed in 1975 by the PaDER, that is, 20 mg per liter average per day not to exceed a 100 mg per liter daily maximum. The pH limitations of from 6.0 to 9.0 were to remain the same under the new permit. Under the stipulation, the limitations in the 1976 permit for both TSS and pH would be asterisked and made subject to a stay of the enforcement if certain conditions occurred:
(a) Upon the EPA's receipt of documentation from the permittee that the permittee has commenced action in an appropriate state forum to obtain relief from the effluent limitations and conditions asterisked, the EPA shall stay enforcement of said limitations and conditions.
(b) After a final administrative determination and/or judicial determination, by the State of Pennsylvania with respect to the effluent limitations and conditions set forth in paragraph (2) above [the limitations on TSS and pH], said effluent limitations and conditions shall be modified by the EPA in accordance with such final determination.
App. at 44. These conditions also provided that if Rohm & Haas was still dissatisfied with the modified limitations set under this procedure, it could request an adjudicatory hearing before the EPA.
That 1976 stipulation also made other substantive changes in the terms of the 1974 permit, including the deletion of some of the requirements that had been imposed by the 1974 permit. 5 All of these stipulated provisions were then incorporated into an amendment to the original NPDES permit issued in 1974. This amended permit (referred to hereafter as the 1976 permit) was issued by the EPA in July 1976 and sent to Rohm & Haas with the provision that the amendment would become effective upon receipt.
The sequence of events contemplated in the asterisked provisions of the 1976 permit that provided for a stay of the TSS and pH limits pending redetermination of these limits by the state did not occur. Rohm & Haas did appeal these limitations to the state board and notified the EPA of the same. According to the terms of the 1976 permit, an appeal would stay EPA enforcement of the appealed terms; however, the appeal to the EHB was withdrawn after the PaDER and Rohm & Haas reached an agreement by which the state withdrew the certifications that it issued in 1974 and 1975 and waived any right to issue a certification in connection with the permit, thereby removing itself from the dispute and allowing the EPA to "determine on its own the numbers to be put in the permit." App. at 112. Because the PaDER had "dropped out of the picture" without setting any final limits on TSS or pH, there was no "final administrative ... or judicial determination" as referred to in the 1976 permit which the EPA could adopt as the state's "final determination" and include in the NPDES permit.
With the PaDER no longer involved, any modification in the 1976 permit could come only from the EPA. On December 22, 1977, one month before the PaDER's withdrawal of its certification and in anticipation of that withdrawal, Rohm & Haas wrote to the EPA proposing new limits on both pH and TSS. 6 The EPA did issue a new draft permit incorporating Rohm & Haas' suggestions on April 26, 1978, but this permit never became effective.
Nothing further happened until 1985 when Proffitt filed this citizen suit against Rohm & Haas under section 505 of the Clean Water Act, 33 U.S.C.A. Sec. 1365, after sending the statutorily required 60-day notice to Rohm & Haas, the EPA and the state of his intention to sue. Proffitt listed numerous violations of the specific TSS and pH limits that had been established by the 1976 permit. These violations are alleged to be ongoing. Proffitt sought a declaratory judgment that Rohm & Haas had violated the provisions of the federal Clean Water Act, an injunction against the defendant from continued violations of that Act, civil penalties against Rohm & Haas for those violations, and attorney's fees and costs.
The district court, granting Rohm & Haas' motion for summary judgment, held that Rohm & Haas was not in violation of the 1976 permit because in that permit the EPA had stayed its enforcement of the limitations which Rohm & Haas is alleged to have violated. The court concluded therefore that neither the EPA nor a citizen could bring suit to redress any violations. Proffitt v. Rohm & Haas, 668 F.Supp. 436, 440-41 (E.D.Pa.1987).
The district court also dismissed Proffitt's pendent state law claims under the Pennsylvania Clean Streams Law on the ground that once the PaDER had revoked its prior certifications and waived its right to issue a certification in regard to the NPDES permit, it was not possible for Rohm & Haas to be in violation of Pennsylvania's Clean Streams Law. Id. Proffitt appeals. Our standard of review over a grant of a summary judgment motion is plenary.
Proffitt challenges the analysis that underlay the district court's order dismissing this action on several grounds. He argues that the 1976 permit is...
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