ELR Citation: ELR 20636
No(s). 85-1873 (4th Cir. May 22, 1986)

The court holds that §505 of the Federal Water Pollution Control Act (FWPCA) allows citizens to seek civil penalties for past violations of national pollutant discharge elimination system (NPDES) permits, that each violation of a monthly average limitation may be treated as equivalent to a daily violation for each day of the month for purposes of assessing maximum civil penalties pursuant to FWPCA §309(d), and that the district court did not abuse its discretion in setting a total penalty of $1,285,322. The court first rules that §505 allows citizens to seek civil penalties for NPDES permit violations occurring prior to the filing of the citizen suit. Although the language of §505 itself, requiring that a defendant be "in violation," is ambiguous, the court finds substantial evidence for its conclusion in other enforcement provisions of the FWPCA, the purposes of the statute, and in the legislative history. Other enforcement provisions in the FWPCA employ present tense phrasing, indicating that Congress could make the distinction when it so desired. Congress also chose to place specific, express limitations on the filing of citizen suits, yet did not expressly prohibit citizens from seeking penalties for past violations; the courts, moreover, have construed the statutory limitations narrowly. That §505(a) expressly authorizes the application of civil penalties in citizen suits without a limited time frame also supports this view. Limiting §505 in the manner suggested by defendant would also eliminate a significant deterrent, impair the recognized effectiveness of citizen suits as an enforcement tool, and undermine the stated goals of the FWPCA to eliminate pollution in the nation's waters. The court distinguishes Hamker v. Diamond Shamrock Chemical Co., 15 ELR 20385, since no permit violation was involved in that case, but notes that it would decline to follow that case even if it were not distinguishable on the facts. Finally, the court rejects defendant's argument that the federal courts will be inundated with state damage claims as a result of its ruling, since the exercise of pendent jurisdiction is a matter of the district court's discretion.

The court next rules that the district court may treat each violation of a monthly average limitation as equivalent to a daily violation for each day of that month for purposes of computing the potential maximum civil penalty under §309(d). The statute refers to penalties per day of violation, not to penalties per violation. Moreover, the section provides for the maximum potential fine. The court has discretion to set a lower penalty as it determines appropriate under the circumstances, as did the district court in the instant case.

The court holds that the district court did not impermissibly shift the burden of proof of violation to defendant. Plaintiffs established their prima facie case by showing 13 daily maximum violations; it was reasonable for the lower court to require defendant to show that these violations did not all occur on separate days. The court holds that although the district court agreed to use the Environmental Protection Agency's Civil Penalty Policy as a guide, it could properly deviate from its terms in determining an appropriate penalty, since the policy is merely a guideline. The court rejects defendant's argument that the district court abused its discretion by assessing a penalty much greater than that assessed in allegedly similar cases. Finally, the court rules that the district court may assess a penalty for each day of unjustified delay regardless of whether a violation actually occurred on each of those days. The language in §309(d) referring to penalties per day of violation refers only to the maximum allowable penalty, not to defendant's unexcused delays in improving its effluent treatment systems.

[The district court opinion appears at 15 ELR 20663.]

Counsel for Appellant
Patrick M. Raher
Hogan & Hartson
815 Connecticut Ave. NW, Washington DC 20006
(202) 331-4500

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