United States v. Ketchikan Pulp Co.

Decision Date18 March 1977
Docket NumberCiv. No. A76-245.
Citation430 F. Supp. 83
PartiesUNITED STATES of America, Plaintiff, and Trustees for Alaska and Alaska Center for the Environment, Plaintiff-Intervenors, v. KETCHIKAN PULP COMPANY, Defendant.
CourtU.S. District Court — District of Alaska

G. Kent Edwards, U. S. Atty., Anchorage, Alaska, for Alaska.

John A. Hamill, Chief, Legal Support Branch, and William T. Christian, Seattle, Wash., for Environmental Protection Agency, Region X.

Wilson A. Rice, Anchorage, Alaska, Edward L. Strohbehn, Jr., National Resources Defense Council, Inc., Washington, D.C., for Intervenor Trustees of Alaska.

Theodore M. Pease, Jr., Anchorage, Alaska, Douglas E. Kliever, Daniel B. Silver, Washington, D.C., for defendant Ketchikan Pulp Co.

Murphy L. Clark, Anchorage, Alaska, for amicus curiae Ketchikan Gateway Borough.

MEMORANDUM AND ORDER

VON DER HEYDT, Chief Judge.

THIS CAUSE comes before the court on plaintiff's and defendant's request to enter a consent decree. This action and the present request represent the culmination of lengthy pre-suit negotiations and administrative hearings involving plaintiff and defendant. The underlying dispute in this case involves the effluent discharge requirements of the Federal Water Pollution Control Act, 33 U.S.C. § 1311 et seq. (hereinafter the Act of FWPCA).

On November 15, 1976, the government filed the complaint in this case alleging that defendants had failed to meet the effluent discharge requirements of the permit they were issued under the FWPCA. Simultaneously the parties filed the proposed consent decree which is the subject of the instant request. The decree presented a compromise plan to bring KPC into compliance with the Act. After a period of public comments on the decree the Trustees for Alaska and other concerned environmental groups moved to intervene in the action under 33 U.S.C. § 1365(b)(1)(B). Two of the three groups were allowed to intervene1 and a hearing on entry of the proposed decree was rescheduled to allow intervenors to prepare comments and objections to the proposed decree. Intervenors have now presented the court with several specific objections to the decree.

The first issue with which the court must deal is the apparently anomalous procedure of considering a consent decree when one of the parties to the action withholds its consent. Upon a request to the parties this issue was specifically addressed at oral argument. Counsel and the court have only discovered a minimal number of cases in which a consent decree was entered over the objection of a party and only one which specifically addressed the issue. In Brennan v. Connecticut State UAW Community Action Program Council, 60 F.R.D. 626, 632 (D.Conn.1973) the court in similar circumstances held that intervenors should be allowed to challenge the appropriateness of the remedy and if the remedy is deemed appropriate by the court judgment can still be entered. See also Patterson v. Newspaper & Mail Deliverers' Union of N. Y. & Vic., 384 F.Supp. 585 (S.D.N.Y.1974), aff'd 514 F.2d 767 (2 Cir.) cert. den. 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203; U. S. v. Simmonds Precision Products, Inc., 319 F.Supp. 620 (S.D.N.Y.1970); Note: Intervention in Government Enforcement Actions, 89 Harv.L.Rev. 1174, 1199-1200 (1976). The court, and apparently intervenors themselves, agree with this statement of the law. As intervenors appropriately point out, the civil enforcement provisions of the FWPCA would otherwise be rendered impossible to administer. Those provisions allow any affected citizen to intervene in a government action as a matter of right. 33 U.S.C. § 1365(b)(1)(B); 33 U.S.C. § 1365(g). If such a citizen were allowed to block entry of a consent decree merely by objecting to its terms it would wreak havoc upon government enforcement actions. Accordingly the court holds that once intervenors have been given the opportunity to object to the decree they have had an appropriate day in court and a judgment on consent may be entered.2

Standard of Review

The next issue which must be considered is the proper standard of review which the court must adopt in determining whether to approve the proposed decree. The government and defendant assert that in reviewing the proposed decree the court should approve the decree unless it finds the agency guilty of bad faith or malfeasance. As a secondary position they assert that the decree should be viewed under the clearly erroneous, abuse of discretion, or violation of the law standard. The court does not agree with either of these proposed standards. With one exception the cases cited do not support the proposition which the parties assert. Several of the cases deal with a statutory scheme in which the agency itself issues some type of order. In those cases Congress has vested the agency with the power to issue orders because of the agencies perceived expertise. See e. g. Moog Industries v. FTC, 355 U.S. 411, 78 S.Ct. 377, 2 L.Ed.2d 370 (1958); Butz v. Glover Livestock Comm., 411 U.S. 182, 185-86, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973). That statutory power is not present in the FWPCA and the agency must come to the court under the circumstances present herein to obtain an enforceable judgment. Entry of such a judgment is a judicial act which deserves more than the court's rubber stamp on the agency's action. Pope v. United States, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3 (1944).

The court also finds inapplicable the rationale of Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). Dunlop involved the review of a decision by an agency not to bring suit when an interested party so desired. The statutory scheme in Dunlop is distinguishable in material respects which totally undercut its persuasiveness herein. If applicable as a proper standard under any circumstances in a FWPCA case, however, it would be in a suit brought to compel agency action under 33 U.S.C. § 1365(a)(2).

United States v. Associated Milk Producers, 394 F.Supp. 29 (W.D.Mo.1975) reiterates the standard of review of a proposed consent decree urged by the government and defendant in the course of ruling on a motion to intervene. Id. at 41. When actually discussing entry of the decree itself, however, the standard used appears to be whether the decree is in the public interest. Id at 44.

In Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961) the Court referred to the bad faith and malfeasance standard. That passing reference was pure dicta, however, and unpersuasive in the context of the present litigation.

In the present case the court is asked to enter a judgment which clearly will have an affect upon the public. In apparent recognition of the fact that the government might not always strenuously protect the public's interest the FWPCA contains the provision allowing citizen's suits and citizen intervention in government civil actions. Once these citizens are allowed to intervene the court is certainly obligated to consider with due respect the objections raised. If the review of the agency's proposed decree were circumscribed by a very narrow standard of review, the right of citizen intervention would be a hollow right indeed. The court concludes that the appropriate standard is that the court should determine whether the decree adequately protects the public interest and is in accord with the dictates of Congress. Patterson v. Newspaper & Mail Deliverers' Union of N.Y. & Vic., 384 F.Supp. 585, 587-88 (S.D.N.Y.1974), aff'd 514 F.2d 767 (2 Cir.), cert. den. 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203; United States v. Ling-Temco-Vought, Inc., 315 F.Supp. 1301, 1309 (E.D.Pa.1970).

Having stated the standard to be applied the difficulty, of course, is in the method of its application. Intervenors request an evidentiary hearing at which time they would place the burden on those seeking to enter the decree to justify its terms. Some reliance for that proposition is placed on Patterson, supra, where the decree was presented after four weeks of trial. In Patterson, however, the court acknowledged that its position was somewhat unique, and additionally the necessity for factual findings arose due to that circuit's standards in Title VII cases. Id. at 588. See also United States v. Ling-Temco-Vought, supra (wherein the court explicitly placed some weight on assurances from the Department of Justice).

In the present case the government and defendant contend that a justification of the consent decree through an evidentiary hearing would be in effect a full trial of the case and the consent decree would not serve its purpose. The court agrees with that assessment. Although the court is obliged to protect the public interest it is not necessary to hear all of the evidence to perform that function. In this case extensive public hearings and comments on this decree were considered...

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