ELR Citation: ELR 20157
No(s). 88-263-JRR (D. Del. Aug 13, 1992)

On remand from the Third Circuit, the court holds that environmental groups have representational standing to bring their Federal Water Pollution Control Act §505 citizen suit against a petroleum refinery for violations of its national pollutant discharge elimination system (NPDES) permit, and holds that it has jurisdiction over those alleged violations that continued at the time the groups filed suit. The court also permanently enjoins the refinery from further violations of its permit and orders it to comply with investigatory, reporting, and monitoring requirements.

The court first holds that the environmental groups have representational standing to sue the oil refiner. The interests in clean water that the groups seek to protect are germane to the groups' organizational purposes, this action is particularly suited to accomplishing the groups' organizational goals, and the groups' members would have standing to sue the oil refiner for its NPDES permit violations. First, the groups have established injury to aesthetic or recreational interests sufficient to confer standing. Testimony established that group members have been deterred from using the water into which the oil refiner's wastewater has been discharged, and future deterioration of the waters and habitat is possible. Next, the groups can establish that there is a substantial likelihood that the oil refiner's conduct harmed the groups because the evidence has shown that the oil refiner discharged pollutants into a waterway of interest to the groups in concentrations exceeding its permit, which causes or contributes to the kinds of injuries alleged by the groups. The court holds that the groups need not demonstrate that the oil refiner's violations specifically caused or contributed to the particular pollution the groups' members observed, but must only demonstrate that the injury is fairly traceable to the oil refiners' violations. Otherwise, requiring plaintiffs to show scientific certainty that the pollutants observed came from a particular violator's operation could only be achieved by showing either a monumental polluting event or that a waterway is so small that precise identification of the observed pollution is possible. Finally, the groups have demonstrated that their injuries are redressable by the relief they request. An injunction barring further permit violations will at least partially redress their injuries. Also, civil penalties will serve as a deterrent to the oil refiner and other polluters.

The court next holds that it has jurisdiction over 323 of the 372 pre-complaint violations alleged by the groups, but lacks jurisdiction over 49 of the pre-complaint violations. The court first observes that it previously rejected the position that it must determine jurisdiction over permit violations on a parameter-by-parameter basis. Parameters are limitations or requirements within an individual permit, generally related to individual outfalls or point sources. The court notes that after it filed its first opinion in this case, which contained the court's judgment based on its belief that jurisdiction over all claims relating to past, present, and possible future violations derived from established violations of some permit limits, the Fourth Circuit ruled that the jurisdictional determination of whether violations are ongoing or intermittent must be made on a parameter-by-parameter basis. Thus, the court employs a variation of the parameter-by-parameter jurisdictional analysis suggested by the Fourth Circuit in Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 20 ELR 20341. The court concludes that a variance is necessary because the parameter-by-parameter standard is too narrow, but permitting one current violation to open a citizen suit up to review of all past violations of all parameters is too broad. Policy militates against encouraging adjudication of violations that cease well before a complaint is filed, but demands the effective means of correcting underlying causes of violations. Thus, if appropriate remedial measures are not taken, the fact that the failure to solve the problem is manifested from time to time in different parameters should not preclude a citizen suit directed at the unresolved source of trouble. The court holds that the interrelationship of violations with a continuing problem and/or failure to remedy it must be demonstrated. In this way, citizen suits will neither be dismissed prematurely nor limited by an unrealistic focus on a particular parameter. As such, the court concludes that the groups need only show for each parameter, or for each parameter dependent on a basic underlying source of violations, that the risk of further violation had not been "completely eradicated" at the time the complaint was filed. Applying this hybrid parameter standard to determine whether a violation was "intermittent and ongoing" or "wholly past," the court holds that it has jurisdiction over only 323 of the 372 pre-complaint violations alleged by the groups. First, the court summarily rejects the oil refiner's substantive defenses to the post-complaint violations, because they raise no issue of material fact. Next, the court finds that 42 violations of various permit levels occurred after the filing of the complaint, which correspond directly to, and provide jurisdiction over, the 323 pre-complaint violations. The court finds that as to the other 49 pre-complaint violations, at the time of the filing of the complaint there was no real risk that the parameters would be violated again or that they were caused by as yet unresolved sources of difficulty. Thus, the court lacks jurisdiction over them.

Turning to the oil refiner's liability for violations that the court has jurisdiction to review, the court holds that the oil refiner is liable for 365 violations. The court next imposes a civil penalty of $1,680,000. First, the court notes that both daily maximum and daily average violations of the same parameter within the same month may be counted in computing the total days of violation. The court thus concludes that the oil refiner is liable for a total of 3,360 violation days for which a fine will be imposed. Next, the court finds that the violations were fairly serious in size, duration, and frequency. Next, the court finds that $900,000 is a fair approximation of the economic benefit enjoyed by the oil refiner as a result of its failure to abide by its permit monitoring requirements, and the oil refiner's ignoring its responsibility argues in favor of imposing a heavier fine. However, the evidence reveals that the oil refiner has historically exhibited a willingness to solve nagging and persistent problems with regard to particular parameters, which has resulted in the number and size of its violations historically declining. The court also finds that while some evidence exists that the oil refiner may have been remiss in efforts to comply with its permit, it does not rise to the level of bad faith. Finally, the court finds that a large penalty would not necessarily cause serious damage to the company's ability to continue in business and compete in the marketplace. Thus, the court fixes the fine for each violation day at $500, which for 3,360 days is $1,680,000.

Finally, the court imposes a permanent injunction, prohibiting the oil refiner from further violations of its permit and directing it to comply with investigatory, reporting, and monitoring provisions. While the number of violations has decreased significantly, the court determines that such injunctive relief is necessary.

[Previous decisions in this litigation are published at 20 ELR 20099 and 20949.]

Counsel for Plaintiffs
C. Scott Reese
Cooch & Taylor
Marine Midland Plaza
824 Market St. Mall, Ste. 1000, P.O. Box 1680, Wilmington DE 19899
(302) 652-3641

Counsel for Defendant
Richard D. Allen, Palmer L. Whisenant
Morris, Nichols, Arsht & Tunnell
1201 N. Market St., P.O. Box 1347, Wilmington DE 19899
(302) 658-9200