Sierra Club v. Simkins Industries, Inc.

• Decision Date: 18 June 1985
• Docket Number: Civ. No. HM84-4018 to HM84-4020.
• Citation: 617 F. Supp. 1120
• Parties: SIERRA CLUB v. SIMKINS INDUSTRIES, INC. SIERRA CLUB v. NUEVA ENGINEERING, INC. SIERRA CLUB v. KEYSTONE AUTOMOTIVE PLATING CO.
• Court: U.S. District Court — District of Maryland

617 F. Supp. 1120

SIERRA CLUB v. SIMKINS INDUSTRIES, INC.

SIERRA CLUB v. NUEVA ENGINEERING, INC.

SIERRA CLUB v. KEYSTONE AUTOMOTIVE PLATING CO.

Civ. Nos. HM84-4018 to HM84-4020.

United States District Court, D. Maryland.

June 18, 1985.

John F. King, G. Macy Nelson and Anderson, Coe & King, Baltimore, Md., for plaintiff Sierra Club.

Jack A. Meyerson, Philadelphia, Pa., Thomas B. Eastman and Ober, Kaler, Grimes & Shriver, Baltimore, Md., for defendant Simkins.

James D. Reed and Reed, Reed & Kelly, Ralph K. Rothwell, Jr., and Maslan & Rothwell, Baltimore, Md., for defendant Nueva.

Benjamin Rosenberg, John L. Harvey and Venable, Baetjer & Howard, Baltimore, Md., for defendant Keystone.

MEMORANDUM AND ORDER

HERBERT F. MURRAY, District Judge.

Plaintiff Sierra Club has filed three citizen's suits pursuant to § 505 of the Clean Water Act, 33 U.S.C. § 1365, against defendants Simkins Industries, Inc., Civil No. HM84-4018 (hereinafter Simkins); Nueva Engineering, Inc., Civil No. HM84-4019 (hereinafter Nueva); and Keystone Automotive Plating Co., Civil No. HM84-4020 (hereinafter Keystone). The complaint in each of the three actions charges the defendant with violating "the terms and provisions of its National Pollutant Discharge Elimination System (NPDES) permit" in violation of the Clean Water Act, 33 U.S.C. § 1251, et seq. Specifically, plaintiff alleges that the defendants' discharge of treated wastes into the Patapsco River pursuant to NPDES permits violates the waste water discharge limits contained in such permits and thus violates § 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a). As relief for the alleged violations, plaintiff seeks a declaratory judgment that defendants have violated the Clean Water Act, 33 U.S.C. §§ 1311 and 1342; an injunction prohibiting defendants from further violating their NPDES permits; a mandatory injunction requiring defendants to provide to plaintiff a copy of all future reports submitted by defendants to the state or federal government regarding defendants' NPDES permits; an assessment of civil penalties of $10,000 per day for each violation against each defendant; and an award of costs, including attorney, witness and consultant fees. Various motions are presently pending before the court; namely:

(1) Defendant Simkins' Motion for Entry of Judgment on the Pleadings;

(2) Defendant Nueva's Motion to Dismiss and/or Motion for Judgment on the Pleadings;

(3) Defendant Keystone's Motion to Dismiss;

(4) Plaintiff's Motions for Partial Summary Judgment as to each defendant;

(5) Plaintiff's Motion for Leave to File Amended Complaint; and

(6) Defendant Nueva's Motion for Continuance.

The court held a hearing on these motions on May 3, 1985, and has reviewed the memoranda submitted and is now prepared to rule.

Background

Plaintiff Sierra has brought these actions against defendants Simkins, Nueva and Keystone pursuant to the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365. That provision provides:

(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf —

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be and to apply any appropriate civil penalties under section 1319(d) of this title.

This court, per Judge Young, has recently discussed the statutory scheme of the Federal Water Pollution Control Act (hereinafter the Clean Water Act or the Act), 33 U.S.C. § 1251 et seq., in Chesapeake Bay Foundation, et al. v. Bethlehem Steel Corporation, 608 F.Supp. 440, 443-444 (D.Md.1985), and will not repeat it herein. Relevant portions of the Act having bearing on the issues at bar will be discussed where appropriate.

As required by § 505(b)(1)(A) of the Act, 33 U.S.C. § 1365(b)(1)(A), plaintiff gave notice on Aug. 31, 1984, of the alleged violations and of its intent to file suit, to the Administrator of the United States Environmental Protection Agency; to the Regional Administrator, Region 3, United States Environmental Protection Agency; to the Assistant Secretary of Environmental Programs, Department of Health and Mental Hygiene; to the Director of Water Management Administration, Office of Environmental Programs; and to the defendants herein. After the lapse of 60 days from plaintiff's giving of notice and after neither the Environmental Protection Agency (hereinafter EPA) nor the state commenced prosecution to redress the alleged violations, plaintiff brought the instant actions.

Plaintiff Sierra Club is a national, nonprofit corporation with its principal place of business in San Francisco, California and with members in the Chesapeake Bay area. It is a public interest organization dedicated to protecting and conserving natural resources. Defendant Keystone, a corporation organized under the laws of the State of California, operates a business consisting of repairing damaged automobile bumpers. Defendant Simkins, a corporation organized under the laws of the State of Connecticut, operates a papermill which manufactures cardboard. Defendant Nueva, a corporation organized under the laws of the State of Maryland, operates a business consisting of the engineering, manufacturing and sale of electronic systems, components and equipment. Each of the defendants discharges treated wastes from its operations into the Patapsco River pursuant to NPDES permits issued by the Maryland Department of Health and Mental Hygiene, Office of Environmental Programs, and authorized by the Administrator of the EPA under § 402(a), (b) of the Act, 33 U.S.C. § 1342(a)-(b).

The instant actions against defendants charge that defendants have violated the waste water discharge limits of their NPDES permits in violation of § 301(a) of the Act, 33 U.S.C. § 1311(a). Plaintiff also charges the defendants with failure to report in violation of the act. Each defendant has moved to dismiss the actions on various grounds. Plaintiff has moved for partial summary judgment as to liability. The court will now examine each of these motions.

I. Sierra Club v. Keystone Automotive Plating

Presently pending before the court in the above-captioned case are plaintiff's Motion for Leave to File Amended Complaint, Defendant's Motion to Dismiss, and Plaintiff's Motion for Partial Summary Judgment. A discussion of each motion follows.

A. Plaintiff's Motion for Leave to File Amended Complaint

Plaintiff files the instant motion requesting the court to grant it leave to file an amended complaint. In support of the motion, plaintiff contends that since it filed its original complaint charging defendant Keystone with violations of the Clean Water Act between April 1, 1976 and September 20, 1983, it has discovered additional violations of the Act by defendant occurring between October 1, 1983 and June 30, 1984. The amended complaint, in essence, only differs from the original complaint in that it alleges additional violations of the Act. Plaintiff thus requests that all of the alleged violations be tried together in the interest of judicial economy. Defendant Keystone has not filed opposition to the motion.

Rule 15 of the Federal Rules of Civil Procedure permits a party to amend his pleading by leave of the court and requires the court to grant such leave to amend when justice so requires. The court believes that justice and judicial economy, in the instant case, mandate permitting plaintiff to amend its complaint in light of the similarity of the issues and parties. There is no reason to subject identical parties to separate trials regarding the same alleged permit violations. Plaintiff's Motion for Leave to File Amended Complaint is therefore Granted.

B. Defendant's Motion to Dismiss

Defendant Keystone initially filed its Motion to Dismiss on January 16, 1985. However, in response to plaintiff's Motion for Leave to File Amended Complaint filed on February 4, 1985, defendant Keystone filed a second Motion to Dismiss on February 27, 1985. Defendant Keystone seeks dismissal of the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Rule 12(b) permits dismissal for failure to state a claim upon which relief can be granted. Dismissal is not proper, however, unless it appears beyond doubt that plaintiff can prove no set of facts in support of its claim which would entitle it to relief. See Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The court will now turn to examine defendant Keystone's grounds for dismissal in light of these principles.

1. Statute of Limitations

In support of its Motion to Dismiss, defendant asserts that the one-year statute of limitations provision set forth in § 5-107 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code applies in the instant case and bars 403 of Sierra's 453 claims that defendant violated its permit between April 1, 1976 and June 30, 1984. Keystone claims that 403 of the alleged permit violations are time-barred because they occurred more than one year prior to the filing of the suit by plaintiff. Keystone asserts also that 50 of the alleged violations occurred within the year...