Work v. Tyson Foods, Inc., 87-2034.

• Decision Date: 24 August 1989
• Docket Number: No. 87-2034.,87-2034.
• Citation: 720 F. Supp. 132
• Parties: Steve WORK, et al., Plaintiffs, v. TYSON FOODS, INC., and The City of Green Forest, Arkansas, Defendants.
• Court: U.S. District Court — Western District of Arkansas

720 F. Supp. 132

Steve WORK, et al., Plaintiffs, v. TYSON FOODS, INC., and The City of Green Forest, Arkansas, Defendants.

No. 87-2034.

United States District Court, W.D. Arkansas, Fort Smith Division.

August 24, 1989.

McMath Law Firm, P.A. by James Bruce McMath & Philip H. McMath, Downing & Ledbetter by Samuel E. Ledbetter, Little Rock, Ark., James G. Lingle, Rogers, Ark., for Steve Work, et al.

Wright, Lindsey & Jennings by John G. Lile, III and M. Samuel Jones, III, Little Rock, Ark., and Michael H. Mashburn, Fayetteville, Ark., for Tyson Foods, Inc.

Davis, Cox & Wright by Sidney P. Davis and Constance G. Clark, Fayetteville, Ark., for City of Green Forest, Ark.

MEMORANDUM OPINION

OREN HARRIS, Senior District Judge.

This action was commenced by the plaintiffs filing the original complaint March 3, 1987. The plaintiffs sought permission and filed their second amended complaint September 16, 1988, as a civil action pursuant to the citizens suit provision, Section 505 of the Federal Clean Water Act (the Act), as amended, 33 U.S.C. § 1365(a), § 1365(a)(2), § 1365(e), § 1370, § 1345, § 1314, § 1318(a), § 1319, § 1317, § 1311, and § 1251, together with various administrative orders issued by the Environmental Protection Agency (EPA), to the City of Green Forest (the City) and the National Pollutant Discharge Elimination System (NPDES) permit.

The plaintiffs also rely on other provisions of law for relief, including the Safe Drinking Water Act, 42 U.S.C. § 300, et seq., the Resources Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901, et seq., provisions of Ark.Stats.Ann. § 82-209, 220, the Arkansas Water and Air Pollution Control Act, the Arkansas Solid Waste Management Act, Ark.Stats.Ann. § 82-1901 and Ark.Stats.Ann. § 82-2701, et seq., involving state permits issued pursuant to state and federal laws.

Furthermore, the plaintiffs seek tort action under common law of the State of Arkansas governing riparian rights, nuisance, constructive and inverse condemnation, declaratory judgment, injunctive relief, the imposition of civil penalties, compensatory and punitive damages, and attorneys fees and costs.

It is established that this court has jurisdiction over the issues involved under Section 505(a) of the Clean Water Act, 33 U.S.C. §§ 1365(a), 1365(a)(2) and 1365(e), and § 1370; 42 U.S.C. § 1983 and § 1985; 28 U.S.C. § 2201 and 28 U.S.C. § 1331. Venue in this case is appropriate in the Western District of Arkansas pursuant to 33 U.S.C. § 1365(c).

The plaintiffs in this action gave required notice of alleged violations on November 18, 1986, and that they intended to file suit. 33 U.S.C. § 1365(b)(1)(A), 42 U.S.C. § 6901, et seq., and 42 U.S.C. § 300, et seq.

Originally there were approximately 106 plaintiffs joined in the case, all of whom resided in Carroll County, Arkansas.

The defendant, City of Green Forest (the City), is a municipality located in Carroll County, Arkansas, and is, therefore, a political subdivision of the State of Arkansas; the City has owned and continues to own and manage a Publically Owned Treatment Works (POTW) which receives waste water effluent from the residents of the City and industrial waste water from the plant of the defendant, Tyson Foods, Inc., (Tyson) located in or near Green Forest, Arkansas. To meet the requirements of the Clean Water Act, 33 U.S.C. § 1365, the City obtained a NPDES permit to discharge pollutants from its POTW into Dry Creek, thence to Long Creek in the White River basin. These discharges were and are discharges of pollutants into navigable waters as defined by § 1362 of the Act.

Originally the Arkansas Department of Pollution Control and Ecology and the United States Environmental Protection Agency were made defendants in the lawsuit on the basis that those agencies had failed to adequately enforce the Act as required. They were dismissed by the court on a showing of their respective efforts and actions as required by law.

The defendants timely answered the complaints of the plaintiffs and have vigorously opposed the contentions of plaintiffs seeking the relief as above alleged in the plaintiffs' complaint. The defendants have denied the allegations of the plaintiffs and have made special efforts to have the alleged charges against the defendants dismissed.

Substantial discovery has been accomplished by the parties in preparation for trial on the issues in the litigation. The court conducted pre-trial hearings and finally scheduled the case for trial commencing Tuesday, April 4, 1989. A jury was impanelled to consider and determine appropriate questions such as the common law tort claims of individual plaintiffs; the question of alleged violations of the Clean Water Act, including civil penalties; and request for injunctive relief. The trial of the case required six weeks and the testimony of numerous witnesses, including many of the plaintiffs, defendants, federal and state officers involved in the management of the pollution laws affecting the environment under which people must live. Each of the parties presented expert witnesses. At the conclusion of a long and tedious trial, the court instructed the jury on the issues of law applicable for the jury's determination in the case. After the court instructed the jury on the issues involved, and counsel having presented their respective arguments to the jury, appropriate interrogatories were presented for the jury's consideration which the court determined the jury should decide. The jury deliberated on the issues presented to them for three days and returned their unanimous verdicts late afternoon of the third day.

First, the jury decided for the City on the question of discharging waste water into Dry Creek and returned a verdict in favor of the City as against the plaintiffs. Pursuant thereto, Judgment was entered on June 19, 1989, in favor of the defendant, City of Green Forest, Arkansas, and against the plaintiffs, Steve Work, et al.

On Interrogatory No. 2 the jury's verdict decided Tyson violated the Clean Water Act.

On Interrogatory No. 3 the jury decided that there were 43 separate occasions since November 16, 1981, that Tyson violated the Clean Water Act.

On Interrogatory No. 4 and final verdict by the jury awarded damages to 40 of the plaintiffs as named therein. The jury determined the damages to each for the plaintiffs as itemized damage to real property to each of the 40 plaintiffs and other compensatory damages. These verdicts were returned and filed with the court. By direction, the clerk entered judgment for each of the plaintiffs in accordance with the unanimous verdicts of the jury on June 19, 1989.

As the jury in its deliberations determined by their verdicts that Tyson was responsible for 43 violations, it becomes the duty and responsibility of this court to assess the penalty in accordance with the Clean Water Act, 33 U.S.C. § 1319(d), which provides:

"Any person who violates section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator, or by a State, or in a permit issued under section 1344 of this title by a State, and any person who violates any order issued by the Administrator under subsection (a) of this section, shall be subject to a civil penalty not to exceed $10,000 per day of such violation."

Under the provisions of the Act if a person is determined to be "in violation," it becomes the responsibility of the district court to decide the extent of the penalties as set out hereinabove. Thus, in the instant case the jury has decided unanimously that Tyson violated the terms of the Act and it becomes the duty of this court to assess civil penalties pursuant to Title 33 U.S.C. § 1319(d). Tull v. United States, 481 U.S. 412, 427, 107 S.Ct. 1831, 1840, 95 L.Ed.2d 365.

Although there have been differences of opinion as to the interpretation of the opinion of the United States Supreme Court in the case of Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F.Supp. 1542 (D.C.Va.1985), this court is of the opinion that the opinions by the district court, Fourth Circuit Court of Appeals, and the Supreme Court, supra, together with the remand to the court of appeals, thence the return by remand to the district judge, provides a complete guide for this court in the instant case. The district court, The Honorable Robert R. Merhige, Jr., in a thorough opinion set forth the applicable law in cases involving the Clean Water Act, 33 U.S.C. § 1365. The issues there are somewhat similar to the issues in the instant case. The Court explained that: "This suit is a citizen enforcement action—a `citizen suit' — authorized by Section 505 of the Clean Water Act, 33 U.S.C. § 1365.... The violations reported in Gwaltney's DMRs form the basis of this action. Where a permittee is in violation of an NPDES discharge limitation, it is also `in violation of ... an effluent standard or limitation under the Act,' 33 U.S.C. § 1365(a)(1), which makes the permittee subject to citizen suits. Id. For citizen suits under the Clean Water Act, Congress has authorized the district courts to assess appropriate civil penalties. 33 U.S.C. § 1365(a). Such penalties may be as high as `$10,000 per day of such violation.' 33 U.S.C. § 1365(d)."

Further, the court stated: "It is clear that, at least under the Clean Water Act, a citizen enforcer can only establish standing if it meets the requirements of `injury in fact' set forth in Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972)." Continuing, the court held: "In addition to the ambiguity in the words `to be in violation' standing alone, other portions of Section 1365 suggest that Gwaltney's proffered construction is not the only — or the most — plausible one." Section 1365 states that: "The district courts shall have jurisdiction ... to apply any...