US v. Hobbs, Civ. A. No. 89-327-N.

• Decision Date: 16 May 1990
• Docket Number: Civ. A. No. 89-327-N.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, Plaintiff, v. S. Paul HOBBS, et al., Defendants.

736 F. Supp. 1406

UNITED STATES of America, Plaintiff, v. S. Paul HOBBS, et al., Defendants.

Civ. A. No. 89-327-N.

United States District Court, E.D. Virginia, Norfolk Division.

May 16, 1990.

Craig B. Shaffer, Environmental Defense Section, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Richard R. Nageotte, Nageotte, McCormack, Kreim & Gray, Woodbridge, Va., for defendants.

MEMORANDUM OPINION

REBECCA BEACH SMITH, District Judge.

This action was brought by the United States seeking injunctive relief and the imposition of civil penalties against the defendants for placing fill materials into waters of the United States without first seeking a permit from the United States Army Corps of Engineers (hereinafter referred to as "Corps").¹ The court conducted a twelve (12) day jury trial in January, 1990, to determine liability of each defendant.² On January 26, 1990, the jury determined that the property owned by Phillip Ray Hobbs and his wife, Dorothy V. Hobbs, and the property owned by S. Paul Hobbs and his wife, Donna M. Hobbs, all located on Ware Neck in Gloucester, Virginia, are wetlands adjacent to waters of the United States. The jury found that defendants Phillip Ray Hobbs and Dorothy V. Hobbs discharged pollutants onto their wetlands property in 1980, 1984, and 1985. The jury further found that defendants S. Paul Hobbs and Donna M. Hobbs discharged pollutants onto their wetlands property in 1986, 1987, and 1988. On January 24, 1990, the court conducted an extensive hearing on numerous motions presented by both parties in this case. At that time, the court determined that this action against the defendants was not time-barred and submitted the case to the jury. Both parties articulated their positions at the hearing and have since filed briefs with respect to the statute of limitations issues.³ This opinion sets forth the court's reasoning on these issues in further detail.

Applicable Statute of Limitations

No specific statute of limitations exists for actions commenced pursuant to the CWA. Ordinarily, when a federal statute does not contain a limitations period, federal courts apply the "most appropriate" statute of limitations under state law, if there is no "relevant" federal statute of limitations. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). This general rule is qualified by an exception, namely that an otherwise applicable state limitations period should not be applied where its application would undermine federal policy. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367, 97 S.Ct. 2447, 2455, 53 L.Ed.2d 402 (1977). The Supreme Court in Occidental stated:

When Congress has created a cause of action and has not specified the period of time within which it may be asserted, the Court has frequently inferred that Congress intended that a local time limitation should apply....

But the Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute. State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies.

Id.⁴

The court must first consider whether a relevant federal statute of limitation exists. See, e.g., Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1521 (9th Cir.1987). Both parties have identified 28 U.S.C. § 2462 as a relevant federal statute of limitations. That section provides:

Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued....

And, in the context of a citizen enforcement suit,⁵ the Court of Appeals for the Ninth Circuit in Chevron stated that "section 2462 clearly applies to enforcement actions brought by the EPA; such actions are by the government and `for the enforcement of a civil fine.'" Chevron, 834 F.2d at 1521 (citing 28 U.S.C. § 2462).⁶

Defendants agree that 28 U.S.C. § 2462 is applicable to the instant case. They argue, however, that it applies only if the court determines that Virginia's one-year statute of limitations⁷ is inapplicable. See Defendants' Trial Memorandum on Statute of Limitations at 1-3 (Feb. 9, 1990) (hereinafter referred to as "Defendants' Brief"). Defendants state: "If this Court determines that no Virginia statute of limitations applies to Clean Water Act enforcement actions, the federal statute of limitations at 28 U.S.C. § 2462 clearly applies." Id. at 1 (emphasis added). Defendants' argument is inconsistent with the requirement in Johnson to use a relevant federal statute of limitations, if available. See supra at 1408. Implicit in defendants' recognition that Section 2462 is an applicable federal limitations period is an acknowledgment that the instant case falls within the contours of Johnson. The requirement as stated in Johnson is to use a state statute of limitations only if no federal one applies; it is not to use an applicable federal statute of limitations only if no state limitations statute applies. See 421 U.S. at 462, 95 S.Ct. at 1721. Moreover, even if Virginia's one-year statute of limitations was applicable here, its application would interfere with the implementation of national policy underlying the CWA.

Congress designed the CWA to recapture and preserve the "integrity of the Nation's waters." 33 U.S.C. § 1251(a); see P.F.Z. Properties, Inc. v. Train, 393 F.Supp. 1370 (D.D.C.1975); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974). Indeed, a primary objective of the CWA is the "national goal" of eliminating the discharge of pollutants into navigable waters. 33 U.S.C. § 1251(a)(1). Application of diverse state limitations periods would produce not only non-uniform enforcement from state to state, but it would also diminish the effective enforcement of the CWA. Chesapeake Bay Found. v. Bethlehem Steel Corp., 608 F.Supp. 440, 447 (D.Md. 1985). Each state potentially could manipulate its statute of limitations depending on its concerns with respect to the environment. Id. States hostile to polluters could adopt a lengthier statute of limitations while others, more accommodating to violators of the CWA, could provide for a brief limitations period. Id. Clearly, "in the context of the Clean Water Act, it could not have been the intent of Congress to have federal courts borrow state statutes of limitations and certainly not statutes as short as one year." Id. Therefore, because a relevant federal statute of limitations exists and because applying Virginia's one-year statute of limitations would frustrate national policy, this court finds that 28 U.S.C. § 2462 is the most appropriate limitations period to be applied to this action for civil penalties.

Accrual

Title 28 U.S.C. § 2462 requires commencement of suit for civil penalties within five years from the date when the claim first accrued. Defendants maintain that the claims against them first accrued when they actually physically ditched and drained their property. Defendants' Brief at 4. However, it has been held that accrual, for statute of limitations purposes under the CWA, occurs not "when the violations actually occurred, but when the reports that document those violations are filed with the E.P.A." Atlantic States Legal Found. v. Al Tech Specialty Steel Corp., 635 F.Supp. 284, 287 (N.D.N.Y.1986); see National Wildlife Fed'n v. Army Dep't, 29 Env't Rep.Cas. 1941, 1944 (E.D.N.C.1989). In Atlantic States, the court indicated that:

It would have been practically impossible for the plaintiff to have discovered the alleged violations of the defendant on its own. It is only when reports are filed with the E.P.A. that the public becomes aware that violations have occurred. To hold that the statute begins to run when violations actually occur, as opposed to when they are discovered, would impede, if not foreclose, the remedial benefits of the statute.

Id. at 287-88.

The evidence established at trial indicates that on December 12, 1988, Mr. Gary Frazer, a biologist with the United States Fish and Wildlife Service, submitted his report on the defendants' property to EPA Region III.⁸ In his report, Mr. Frazer analyzed field data collected from the defendants' property and recommended that the Corps issue a cease and desist order. While the evidence presented at the jury trial indicates that the EPA may have been alerted to possible violations involving the defendants shortly before receiving Mr. Frazer's report, the report nevertheless is the first piece of information to formally detail and document the results of any field studies conducted on defendants' property.⁹ Therefore, consistent with the holding in Atlantic States, this court finds that the plaintiff's cause of action accrued on December 12, 1988, when EPA Region III received the Frazer report. The plaintiff filed a counterclaim which is the basis for the instant action on June 23, 1989, well within the five year period contemplated by 28 U.S.C. § 2462. Accordingly, the plaintiff's action for civil penalties is not time-barred.

Injunctive Relief

The limitations period set forth in 28 U.S.C. § 2462 applies only to suits for civil penalties. This section, by its own terms, has no bearing on suits in equity. Plaintiff in this case seeks both civil penalties pursuant to 33 U.S.C. § 1319(d) and injunctive relief pursuant to 33 U.S.C. § 1319(b). While this court finds that 28 U.S.C. § 2462 applies to enforcement actions under the CWA, see supra at 2-6, that holding does not govern this court's actions with respect to the equitable relief sought by plaintiff. See Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (...