US v. CPS Chemical Co., Inc.

• Decision Date: 12 November 1991
• Docket Number: No. J-C-90-43.,J-C-90-43.
• Citation: 779 F. Supp. 437
• Parties: UNITED STATES of America, Plaintiff, v. CPS CHEMICAL COMPANY, INC., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

779 F. Supp. 437

UNITED STATES of America, Plaintiff, v. CPS CHEMICAL COMPANY, INC., Defendant.

No. J-C-90-43.

United States District Court, E.D. Arkansas, Jonesboro Division.

November 12, 1991.

Miriam L. Chesslin, Dept. of Justice, Land & Natural Resources Div., Washington, D.C. and Floyd Mac Dodson, U.S. Atty's Office, Little Rock, Ark., for U.S.

Charles R. Nestrud, Chisenhall, Nestrud & Julian, Little Rock, Ark., for CPS Chemical.

MEMORANDUM OPINION

SUSAN WEBBER WRIGHT, District Judge.

The United States seeks civil penalties and injunctive relief against CPS Chemical Company, Inc. (CPS) for persistent discharge of pollutants into navigable waters in violation of Sections 301 and 402 of the Clean Water Act, 33 U.S.C. §§ 1311 and 1342, the conditions and limitations of the National Pollutant Discharge Elimination System (NPDES) permit issued to CPS in August 1984 by the United States Environmental Protection Agency (EPA), and the terms of five administrative orders issued by the EPA during the life of the 1984 permit. The government moves for partial summary judgment on the issue of CPS' liability for these violations. For the reasons set forth below, the Court finds that the motion should be and hereby is granted.

I.

The objective of the Clean Water Act (the Act) is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251 (1982). Section 301(a) of the Act, 33 U.S.C. § 1311(a), makes unlawful "the discharge of any pollutant by any person" into navigable waters of the United States except as otherwise permitted under certain enumerated sections of the Act.¹ This prohibition significantly changed prior federal water pollution law:

This section § 301 clearly establishes that the discharge of pollutants is unlawful. Unlike its predecessor program which permitted the discharge of certain amounts of pollutants under the conditions described above, this legislation would clearly establish that no one has the right to pollute—that pollution continues because of technological limits, not because of any inherent right to use the nation's waterways for the purpose of disposing wastes.... The Committee believes it is important to clarify this point: no one has the right to pollute.

S.Rep. No. 414, 92nd Cong., 1st Sess. 64, reprinted in 1972 U.S.C.C.A.N. 3668, 3709. See EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976).

A "discharge of a pollutant" is defined, in applicable part, as "any addition of any pollutant to the waters of the United States from any point source." 33 U.S.C. § 1362(12)(A). The term "pollutant" is broadly defined to include, among other things, solid waste, solid waste, industrial, municipal, and agricultural waste, sewage sludge, biological or radioactive materials, wrecked or discarded equipment, heat, rock, sand, and cellar dirt. Id. § 1362(6). A "point source" is "any discernible, confined and discrete conveyance." Id. § 1362(14).

There is a critical exception to the Act's basic do-not-pollute rule. The discharge of pollutants is permitted if the source obtains and complies with a permit that limits the amounts and kinds of pollutants which can lawfully be discharged. The cornerstone of this scheme is the National Pollution Discharge Elimination System (NPDES) permit program, established under the Federal Water Pollution Control Act Amendments of 1972. See 33 U.S.C. § 1342. As the United States Court of Appeals for the District of Columbia Circuit indicated in National Resources Defense Council v. USEPA, 822 F.2d 104 (D.C.Cir.1987):

The first principle of the statute is ... that it is unlawful to pollute at all. The Clean Water Act does not permit pollution whenever that activity might be deemed reasonable or necessary; rather, the statute provides that pollution is permitted only when discharged under the conditions or limitations of a NPDES permit.

Id. at 123. Thus, the Act allows the discharge of pollutants from a point source only in compliance with limitations established in the Act.

Sections 301 and 304 of the Act, 33 U.S.C. §§ 1311(b) and 1314(b), which were added by amendment in 1972, direct the EPA to incorporate into the permits increasingly stringent technology-based effluent limitations.² These technology-based effluent limitations, as their name suggests, derive from standards formulated with reference to pollution control technology. See id. § 1314(b). Dischargers are required to use progressively more advanced technology.

Under the 1972 amendments, section 301(b)(1)(A) directed the EPA to establish effluent limitations requiring "the application of the best practicable control technology currently available," known as the "BPT" standard, which dischargers were to have met by July 1, 1977. The 1977 amendments made the standard applicable in a particular case depend in part on the type of pollutant — toxic, conventional, or nonconventional. See id. §§ 1362(13) (toxic pollutants), 1314(a)(4) (conventional pollutants), 1311(b)(2)(F) (other pollutants which are neither toxic nor conventional).³ Section 301(b)(2)(E) directed the EPA to establish effluent limitations for conventional pollutants to have been met not later than July 1, 1984, requiring dischargers to achieve effluent reductions in conventional pollutants that reflect application of the "best conventional pollutant control technology," known as the "BCT" standard. Section 301(b)(2)(A) and (F), elevated the BPT standard even further, requiring the dischargers to have begun applying the "best available technology economically achievable," known as the "BAT" standard, to listed toxic pollutants by July 1, 1984, and to all other (nonconventional) pollutants by July 1, 1987. Section 304(b) set the technical criteria for determining effluent reductions attainable under BPT and BAT.

Congress again amended portions of the Act in 1987 to extend compliance dates prescribed in the 1977 amendments from July 1, 1984 to March 31, 1989, to permit modification of effluent limitations for certain specified "nonconventional" pollutants, to alter the guidelines applicable to facilities that are fundamentally different, and to effect other changes. References in this opinion to the Act refer to its provisions before the 1987 amendments.

In short, the statutory scheme is structured around a series of increasingly rigorous technology-based standards, beginning with implementation of the best "practicable" technology (BPT) and progressing toward implementation of pollution controls to the full extent of the best technology available (BAT). "Thus, the most salient characteristic of this statutory scheme, articulated time and again by its architects and embedded in the statutory language, is that it is technology-forcing." Natural Resources Defense Council v. USEPA, 822 F.2d 104, 123 (D.C.Cir.1987) (citing S.Rep. No. 414, 92d Cong., 1st Sess. 42, reprinted in 1972 Legislative History at 1460; 117 Cong.Rec. 38,808 (1971) (Sen. Montoya), reprinted in 1972 Legislative History at 1278; 118 Cong.Rec. 33,693, 33,696, (1972) (Sen. Muskie), reprinted in 1972 Legislative History at 163, 170; Tanners' Council v. Train, 540 F.2d 1188, 1195 (4th Cir. 1976)) (emphasis added).

NPDES permits are issued by the EPA (or by a state if the permitting program is delegated) for fixed terms not to exceed five years. 33 U.S.C. § 1342(b)(1)(B). Permits are written on a facility-specific basis and impose effluent limitations on the discharge of specific pollutants in the facility's wastestream. The NPDES permits thus "transform generally applicable effluent limitations and other standards ... into the obligations (including a timetable for compliance) of the individual discharger." EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 70, 101 S.Ct. 295, 300, 66 L.Ed.2d 268 (1980) (quoting EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976)). All dischargers are required to obtain a permit, which is issued after public notice and an opportunity for public hearing. 33 U.S.C. § 1342(a)(1), (b)(3).

The 1972 amendments required the EPA to develop minimum technology-based effluent guidelines on an industry-by-industry basis, to be applied nationwide to all dischargers in specified industrial subcategories. If no national standards have been promulgated for a particular category of point sources, the permit writer is authorized to use, on a case-by-case basis, his "best professional judgment" (BPJ) to incorporate "such conditions as the EPA determines are necessary to carry out the provisions of the Act." Id. § 1342(a)(1). Thus, "compliance with a permit is generally deemed to constitute compliance with the Act's requirements." Natural Resources Defense Council, 822 F.2d at 111 (citing 33 U.S.C. § 1342(k)).

Section 509(b) of the Act, 33 U.S.C. § 1369(b), sets forth an exclusive statutory scheme for review of allegedly unreasonable NPDES permit limits. Judicial review of permit conditions is only by petition to the United States Court of Appeals for the circuit in which the permittee resides or does business. The statutory right to review by the court of appeals of NPDES limitations arises at the time of the issuance of the permit. Until 1987, such petitions were required to be filed within 90 days of issuance of the permit. In 1987 Section 509(b)(1) was amended to enlarge this time to 120 days. Section 509(b)(2), by its terms, precludes judicial review of permit limits in proceedings brought for their enforcement. Enforcement proceedings must be brought in the United States District Court in the district in which the permittee is located or doing business. 33 U.S.C. § 1319(b), (d).

EPA regulations implementing the Act contain procedures for modifying existing NPDES permits during their five-year terms, upon either the EPA's initiative or application by the...