United States v. Cargill, Inc.

Decision Date12 February 1981
Docket NumberCiv. A. No. 80-135.
Citation508 F. Supp. 734
PartiesUNITED STATES of America, Plaintiff, v. CARGILL, INCORPORATED, Defendant.
CourtU.S. District Court — District of Delaware

COPYRIGHT MATERIAL OMITTED

James W. Garvin, Jr., U. S. Atty., Peggy Ableman, Asst. U. S. Atty., Wilmington, Del., James W. Moorman, Asst. Atty. Gen., Dept. of Justice, Robert L. Bragar, Atty., EPA, Washington, D. C., and Margaret Cardomone, Atty., EPA, Region III, Philadelphia, Pa., of counsel, for plaintiff.

F. Michael Parkowski and John W. Noble of Parkowski, Noble & Guerke, Dover, Del., for defendant.

OPINION

LATCHUM, Chief Judge.

In this case, the Court has had thrust upon it the conundrum of defining, in a particularly unusual and complicated situation, the respective roles of the state and federal governments in the enforcement of the Clean Water Act (the "Act"), 33 U.S.C. §§ 1251 et seq. The Act is representative of the class of statutory pronouncements which, while recognizing and providing for Federal primacy in their implementation and enforcement, also create (or preserve) a significant role for the states and private citizens. Thus, the tensions inherent in a federal system are recreated, if not exacerbated, by the Act, which ofttimes fails to create clear boundaries for the respective authorities of the federal government, the states and the people. See American Iron and Steel Institute v. EPA, 526 F.2d 1027, 1074 (C.A.3, 1975) (Adams, J., concurring). In approaching the particular problems posed by this case, this Court will attempt to keep in mind, Judge Goldberg's concluding remarks in Save the Bay, Inc. v. Administrator of the EPA, 556 F.2d 1282, 1296-97 (C.A.5, 1977):

We have been called upon to examine a statutory scheme that has the potential for the optimum of federalism. The legislation contains problems of accommodation that will require additional interstitial interpretation and environmental exploration as the partners pirouette. The success of their federalist venture will depend not only upon the grace, but also the substance of movement by both partners in the ballet. We have endeavored to ink a most self-effacing role for the federal judiciary, one which should foster a harmonious background to the dance and necessitate intervention only when a point of unmelodious discord seriously threatens the contrapuntal balance.

The present action was brought by the United States at the request of the Environmental Protection Agency ("EPA") under section 309 of the Act, 33 U.S.C. § 1319, against Cargill, Inc. ("Cargill"), a Delaware corporation, to enjoin Cargill from further violating the terms of a wastewater discharge permit issued to it pursuant to section 402 of the Act, 33 U.S.C. § 1342, and to impose civil penalties for past violations of that permit.1 Jurisdiction is alleged to exist under 28 U.S.C. §§ 1345 and 1355 and 33 U.S.C. § 1319. Cargill without answering the complaint moved to dismiss, abate, or stay the action2 or to abstain from assuming jurisdiction over the action on the ground that a still pending suit had previously been filed by the Delaware Department of Natural Resources and Environmental Control ("DNREC") in state court seeking identical relief. Cargill filed a brief in support of its motion3 supported by affidavits and other documentary evidence,4 in response to which the EPA filed an answering brief5 and supporting evidence.6 Cargill also filed a reply brief7 with still other supporting evidence.8 Oral argument was held on September 25, 1980 and the motion is now ready for decision.9

Because of the delicate nature of the Court's task and the extraordinary circumstances giving rise to Cargill's motion, a somewhat extended discussion of the statutory and factual background of the case is necessary.

I. Statutory Background: The Clean Water Act.

Congress clearly and unambiguously stated that the principal purpose of the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 86 Stat. 816, was to restore and maintain the purity of the nation's waters and eventually to eliminate the discharge of all pollutants into them. Section 101(a) of the Act, 33 U.S.C. § 1251(a) provides:

The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter—
(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; ....

The Congressional statement of policy also provides that while the primary responsibility for the administration of the Act was to lie with the Administrator of the EPA ("the Administrator"),10 the "primary responsibilities and rights of States" to control water pollution and manage natural resources were to be recognized, preserved and protected,11 and the participation of the public was to be provided for, encouraged and assisted.12

The means prescribed by the Act for implementing the primary goal of cleaning up the nation's waters reflects the Congressional intent to encourage cooperative federalism. However, the Act's imprecision in delineating the exact roles of the various participants has often done much to exacerbate federal/state tensions, as shown by the present case. See EPA v. California, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); Cleveland Illuminating Co. v. EPA, 603 F.2d 1 (C.A.6, 1979); Save the Bay, Inc. v. Administrator of the EPA, supra; American Iron and Steel Institute v. EPA, supra; "State/EPA Relations Severely Strained, General Accounting Office Report Says," 11 Env.Rep. Current Developments 649 (August 29, 1980). This basic statutory framework has been elucidated in a substantial number of cases. See e. g., EPA v. National Crushed Stone Association, ___ U.S. ___, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980); E. I. DuPont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); EPA v. California, supra; Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (C.A. D.C.1978).

The Act adopts the basic control strategy of limiting the emission of pollutants13 from "point sources."14 EPA v. California, supra, 426 U.S. at 204-205, 96 S.Ct. at 2024-2025; Rodgers, W. H., Environmental Law §§ 4.1 & 4.11 (1977) ("Rodgers"). It begins with the premise that all discharges of pollutants into United States waters are illegal and then specifies several narrowly drawn exceptions to that premise. Section 301(a) provides in pertinent part:

Except as in compliance with this section and sections ... 1342 section 402 of the Act ... of this title, the discharge of any pollutant by any person shall be unlawful.

33 U.S.C. § 1311(a). Section 301(b) authorizes the Administrator to establish nationally applicable effluent limitations for categories of point sources.15 33 U.S.C. § 1311(b). These federally established limitations and other effluent limitations established pursuant to the Act are applied to individual installations through the mechanism of the National Pollution Discharge Elimination System ("NPDES") whose establishment is authorized by section 402, 33 U.S.C. § 1342.

Under the NPDES program, each discharger of pollutants is required to obtain a permit to discharge those pollutants. The permit must incorporate any applicable standards and requirements set in accordance with other sections of the Act, including the § 301 effluent limitations and certain water quality based limitations. In the absence of the "necessary implementing actions relating to all such requirements," the permit must incorporate such limitations and conditions "as the Administrator determines are necessary to carry out the provisions of" the Act. § 402(a)(1), 33 U.S.C. § 1342(a)(1).

Initially the EPA is authorized to administer the NPDES permit program. However, if a state establishes a program meeting the requirements set forth in section 402(b), 33 U.S.C. § 1342(b), and those contained in EPA regulations authorized by section 304(i), 33 U.S.C. § 1314(i) and now codified at 40 C.F.R. Part 122,16 the Administrator must turn over the administration of the NPDES program over to that state. Among other statutorily imposed criteria which a state must meet in order to have an NPDES program approved is the requirement that a state have adequate enforcement authority to "abate violations of the permit ... program, including authority to impose adequate civil and criminal penalties." In regards to this requirement, section 309(d) of the Act, 33 U.S.C. § 1319(d), provides that dischargers violating NPDES permits shall be liable for civil penalties of as much as $10,000 per day of violation. Moreover, among the criteria established by the EPA in regulations enacted pursuant to section 304(i), 33 U.S.C. § 1314(i), are the following requirements relating to enforcement and penalties:

(c) Any civil penalty assessed, sought or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation. A civil penalty agreed upon by the State Director in settlement of administrative or judicial litigation may be adjusted by a percentage which represents the likelihood of success in establishing the underlying violation(s) in such litigation.
* * * * * *
In the case of a penalty for a failure to meet a statutory or final permit compliance deadline, "appropriate to the violations," as used in this paragraph, means a penalty which is equal to:
(1) An amount appropriate to redress the harm or risk to public health or the environment; plus
(2) An amount appropriate to remove the economic benefit gained or to be gained from delayed compliance; plus
(3) An amount appropriate as a penalty for the violator's degree of recalcitrance, defiance, or indifference to requirements of the law; plus
(4) An amount appropriate to recover unusual or extraordinary enforcement costs thrust upon the public; minus
(5) An amount, if any, appropriate to
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