U.S. E.P.A. v. City of Green Forest, Ark.

• Decision Date: 14 February 1991
• Docket Number: 90-1011-WA and 90-1041-WA,Nos. 89-1661-W,89-2636-W,89-2549-W,s. 89-1661-W
• Parties: , 59 USLW 2412, 19 Fed.R.Serv.3d 513, 21 Envtl. L. Rep. 20,610 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Appellee, v. CITY OF GREEN FOREST, ARKANSAS, Appellee, Lewis Stephen Work, et al., Appellants/Intervenors. Lewis Stephen WORK, et al., Appellants/Cross-Appellees v. TYSON FOODS, INC., and City of Green Forest, Arkansas, et al., Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1394

921 F.2d 1394

32 ERC 1508, 59 USLW 2412, 19

Fed.R.Serv.3d 513,

21 Envtl. L. Rep. 20,610

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Appellee, v. CITY OF GREEN FOREST, ARKANSAS, Appellee, Lewis Stephen Work, et al., Appellants/Intervenors.

Lewis Stephen WORK, et al., Appellants/Cross-Appellees v. TYSON FOODS, INC., and City of Green Forest, Arkansas, et

al., Appellees/Cross-Appellants.

Nos. 89-1661-WA, 89-2549-WA, 89-2636-WA, 90-1011-WA and 90-1041-WA.

United States Court of Appeals Eighth Circuit.

Argued Oct. 10, 1990.

Decided Dec. 18, 1990.

Rehearing and Rehearing En Banc

Denied Feb. 14, 1991.

James Bruce McMath, Little Rock, Ark., for appellants/intervenors.

William B. Lazarus, Washington, D.C., for U.S.

Constance G. Clark, Fayetteville, Ark., for Green Forest.

M. Samuel Jones, III, Little Rock, Ark., for Tyson Foods.

Before LAY, Chief Judge, BRIGHT, and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge:

Appellants Lewis Stephen Work, et al. (the citizens or Work) appeal from two orders entered December 3, 1987 and March 24, 1989 in the Western District of Arkansas, Oren Harris, Senior District Judge. 720 F.Supp. 132. The first denied intervention in a government environmental enforcement action or consolidation of that action with an earlier citizens' action. The second denied another motion for intervention in the Environmental Protection Agency (EPA) action. The citizens appeal also from final judgments entered June 19, 1989 and August 24, 1989 720 F.Supp. 132 after trial of the citizens' action. Appellee/cross-appellant Tyson Foods, Inc. (Tyson) appeals from the final judgments. Tyson also appeals, and the citizens cross-appeal, from the denial of Tyson's motion for reconsideration filed November 28, 1989. All appeals have been consolidated.

Work commenced the citizens' action against Tyson and the City of Green Forest (the City or Green Forest) on March 3, 1987, asserting claims pursuant to both the Clean Water Act (the Act or CWA), 33 U.S.C. Secs. 1250-1387 (1988), and common law. On September 28, 1987, the EPA commenced an action against Green Forest and the State of Arkansas pursuant to the CWA. The government enforcement action resulted in a consent decree. The citizens' action proceeded to trial, resulting in a verdict against Tyson under the CWA; against Tyson and for the citizens on the common law claims; and for Green Forest on the citizens' remaining claims. The court previously had granted partial summary judgment for the City, dismissing the CWA claims against it. The court assessed penalties against Tyson pursuant to the CWA, payable to the United States Treasury.

On appeal, Work sets forth a laundry list of claimed errors by the district court: (1) in denying their motion to intervene and/or denying their motion to consolidate; (2) in dismissing their claims against Green Forest under the CWA; (3) in calculating the penalties assessed against Tyson under the CWA; (4) in various evidentiary and instruction-related matters; and (5) in dismissing medical claims of ten employees, directing a verdict against Patricia Hudson and directing a verdict to deny an award of punitive damages.

On cross-appeal, Tyson also claims that the district court erred in various other respects, including: (1) in its instruction to the jury on discharger liability; (2) in failing to grant Tyson's motion for a directed verdict; and (3) in failing to grant Tyson's motion to dismiss.

For the reasons set forth below, we reverse the second order of the district court denying intervention in the government enforcement action and remand for the limited purpose of assessing attorneys' fees; we affirm the final judgment entered in the citizens' action with respect to the CWA claims; and we affirm in part and reverse in part with respect to the common law claims.

I.

We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. We also summarize briefly the statutory background of the CWA.

(A)

The CWA, enacted in 1972, creates a comprehensive program "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a). As part of that program, Sec. 301(a) of the Act, 33 U.S.C. Sec. 1311(a), prohibits all discharges of pollutants into navigable waters except those made in compliance with other sections of the Act, including Sec. 402, 33 U.S.C. Sec. 1342, which establishes the National Pollution Discharge Elimination System (NPDES).

Section 402(a) provides that the EPA shall issue NPDES permits authorizing effluent discharges in strict compliance with conditions specified in the permit. 33 U.S.C. Sec. 1342(a). Section 402(b) allows each state to develop and administer its own permit program, provided that the program meets federal requirements. 33 U.S.C. Sec. 1342(b). And Section 402(c) provides that the EPA shall suspend issuance of federal permits upon determining that a state has adequate authority to implement and enforce the permitting program within the state. 33 U.S.C. Sec. 1342(c).

The Act directed the Administrator of the EPA to promulgate regulations setting limits on the pollution that can be discharged, delineated by three general types of "point sources," id. at Sec. 1362(14): sources that discharge pollutants directly into navigable waters (direct dischargers); publicly owned treatment works (POTWs), which engage in the treatment of industrial sewage or industrial wastewater, id. at Sec. 1292(2); and sources that discharge their pollutants not into navigable waters but into the POTWs (indirect dischargers). National Ass'n of Metal Finishers v. EPA (NAMF), 719 F.2d 624, 633 (3d Cir.1983) (discussing statutory framework of the CWA), rev'd on other grounds sub nom. Chemical Mfrs. Ass'n v. N.R.D.C., Inc., 470 U.S. 116, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985). "Congress recognized that the pollutants which some indirect dischargers release into POTWs could interfere with the operation of the POTWs, or could pass through the POTWs without adequate treatment." Id. Section 307(b)(1) of the Act provides that:

"The Administrator shall ... publish proposed regulations establishing pretreatment standards for introduction of pollutants into [POTWs] for those pollutants which are determined not to be susceptible for treatment by such treatment works or which would interfere with the operations of such treatment works.... Pretreatment standards under this subsection ... shall be established to prevent the discharge of any pollutant through [POTWs], which pollutant interferes with, passes through or otherwise is incompatible with such works."

33 U.S.C. Sec. 1317(b)(1).

For POTWs, the Administrator was to set effluent limitations based on "secondary treatment," id. at Secs. 1311(b)(1)(B) and 1314(d)(1). These limitations were to be applied through the NPDES permit for each POTW. Id. at Sec. 1342; NAMF, supra, 719 F.2d at 633.

The Act authorizes several different enforcement actions if a NPDES permit holder fails to comply with the specified permit conditions. Section 309 authorizes the United States to enforce a federal or state permit through a variety of administrative, civil, and criminal mechanisms. 33 U.S.C. Sec. 1319. A state may take similar action, under appropriate state law, in response to a state-issued permit. Id. at Sec. 1342(b)(7). In addition, Section 505(a)(1) of the Act permits private citizens to commence a civil action in certain situations against anyone "who is alleged to be in violation of ... an effluent standard or limitation under this chapter," id. at Sec. 1365(a)(1), which includes a federal or state NPDES permit or condition thereof, id. at Sec. 1365(f). No such action, however, may be commenced under the following circumstances:

"(A) prior to the sixty days after plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right."

Id. at Sec. 1365(b)(1)(b). The CWA specifically provides that statutory and common law rights are not restricted: "Nothing in this section shall restrict any right which any person ... may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief...." Id. at Sec. 1365(f).

(B)

Green Forest is a small town in the Ozark Mountains of northwest Arkansas. It is located in Carroll County, which has a topography known as "karst". Karst is permeable limestone readily penetrated by surface water. Streams frequently submerge and re-emerge. Streams having an intimate contact with the groundwater system through sinkholes or other means are called "losing streams."

In 1953, the City constructed its POTW at its present location on Dry Creek, a losing stream. Dry Creek flows through the area where Work and the other citizens who commenced the citizens' action live. It is into Dry Creek that the POTW discharges.

In 1959, a poultry processing plant, Franz Foods, was constructed and began discharging a growing waste load into the POTW. Franz Foods was acquired by Tyson in 1968.

In December 1968, the City sought federal funding to construct a new POTW capable of meeting secondary treatment standards. In the grant application process, the EPA approved plans and specifications for the new POTW subject to conditions, including limitations on Tyson discharges. In May 1973, the City requested an NPDES permit, as required by the CWA, to operate its new POTW and discharge into Dry Creek, indicating the POTW should be capable of...