ELR Citation: ELR 20663
No(s). 84-0366-R (E.D. Va. Jun 26, 1985)

In a Federal Water Pollution Control Act (FWPCA) citizen suit seeking civil penalties against defendant for violations of its national pollutant discharge elimination system permit, the court assesses a large civil penalty after ruling that an organization need not identify injured members to have standing and citizen suits may seek penalties for past violations. Applying the injury-in-fact standard, the court first holds that plaintiff environmental groups have established standing to sue on behalf of their members. Plaintiffs' unopposed assertions that its members use the river into which defendant discharges its waste satisfies the FWPCA's standing requirement by providing a concrete indication that the organization or one of its members use the waterway involved or would be adversely affected by its pollution. Plaintiffs are not required to identify its injured members to provide the requisite "concrete indication."

The court next rules that the FWPCA authorizes citizen suits for civil penalties for past, as well as ongoing, violations based on its interpretation of the statutory language, legislative history, and the goals of the FWPCA. It is a reasonable reading of the statute that a defendant remains "in violation" of its permit under §505(a)(1) with respect to past violations even though it subsequently comes into compliance. Although the statutory language is ambiguous, the legislative history supports this construction. A contrary interpretation would undermine the deterrent effect of citizen suits by providing little additional incentive for polluters to comply with discharge limitations until a citizen suit is actually commenced and by requiring plaintiffs to confront a near-impossible evidentiary hurdle in establishing continuing violations. The court refutes the Fifth Circuit's contrary opinion in Hamker v. Diamond Shamrock Chemical Co.

Having resolved the jurisdiction issues, the court turns to a determination of defendant's maximum liability under the $10,000 per day civil penalty limit of §309(d). When calculating the number of days that a polluter is in violation of its permit, the court rules that a violation of a monthly average constitutes 30 days of violation, not a single day as defendant urges. The court next rules that multiple violations on the same day, even where defendant violates discharge limitations for several pollutants, constitute only one day of violation for purposes of the $10,000 limit. The court sets defendant's maximum liability at $6,660,000 for 22 months of monthly average violations and 13 violations of daily maximums in months in which the monthly average was not exceeded.

The court next calculates defendant's actual penalty using the Environmental Protection Agency's civil penalty policy as a guide.This policy recommends that the penalty include economic benefits of noncompliance to the polluter and a gravity component reflecting the seriousness of the violation. This "preliminary deterrence amount" is then adjusted to ensure that the regulated community is treated fairly. Recognizing the difficulty of determining actual economic benefit, the court decides to simply do its best to arrive at a rational estimate, resolving uncertainties in favor of a higher estimate.In accordance, economic benefits shall be computed based on the entire period of noncompliance, without allowing for the time allegedly necessary to get new pollution control equipment on line. In arriving at a gravity component, the court considers the seriousness of the environmental problems caused or threatened and the size of the exceedance. That the environmental health of the river is improving is no cause for mitigation, since defendant's violations may have slowed that improvement. In adjusting the preliminary deterrence amount, the court considers defendant's willfulness as evinced by its failure to expedite the shipment of parts and other steps in the process of achieving compliance. However, with regard to defendant's biological treatment system, the court reduces the penalty for the period of uncontrollable violations associated with startup of the system. Further, defendant's eventual compliance with the law without the coercion of a lawsuit is not the sort of "cooperation" that should be rewarded by a reduced penalty. The court assesses defendant a civil penalty of $1,285,322 for violations arising out of problems with its chlorination and biological treatment systems.

Counsel for Plaintiffs
Jeter Watson
Chesapeake Bay Foundation
11 S. 12th St., Richmond VA 23219
(804) 780-1392

Ann Powers Gailis
Chesapeake Bay Foundation
162 Prince George St., Annapolis MD 21401
(301) 262-8816

James Thornton
Natural Resources Defense Council, Inc.
122 E. 42d St., New York NY 10168
(212) 949-0049

Counsel for Defendant
Woodrow Crook
107 Institute St., Smithfield VA 23430-0406
(804) 357-3050

Anthony Troy
Mays, Valentine, Davenport & Moore
1111 E. Main St., Richmond VA 23208
(804) 644-6011

Robert Brame
McGuire, Woods & Battle
Ross Bldg., Richmond VA 23219
(804) 644-4131