ELR Citation: ELR 21053
No(s). 87-1600 (4th Cir. May 31, 1988)

The court holds that an environmental plaintiff in a Federal Water Pollution Control Act (FWPCA) §505 citizen suit has established a continuing violation as required by the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, and the remedy of civil penalties is not unconstitutional. The court first holds that plaintiff has established standing to sue. Plaintiff has established injury-in-fact, since an affidavit submitted by one of plaintiff's members alleges that defendant's failure to file discharge monitoring reports (DMRs) has resulted in the permanent loss of crucial information on the level of pollutants in the river where defendant's plant is located. The absence of this information threatens plaintiff's members' interest in protecting the environmental integrity of the river and their ability to curtail unlawful discharges. The court holds that the FWPCA's provision for civil penalties does not unconstitutionally provide a remedy that does not address plaintiff's injury. Judicial relief in the form of civil penalties, even if payable only to the federal treasury, is causally connected to a citizen plaintiff's injury, since the penalties provide a deterrence against future violations.

The court then holds that plaintiff has alleged in good faith and has established a continuing violation. Plaintiff's notice of intent to sue stated that defendant had violated and continued to violate its national pollutant discharge elimination system (NPDES) permit and listed reporting violations that had occurred as of the date of the letter. Although plaintiff obviously could not list violations that occurred subsequent to the filing of the 60-day notice letter, it was sufficient for plaintiff to allege a continuous series of reporting violations coupled with an allegation that defendant was continuing to violate its permit's terms and conditions. Moreover, plaintiff did in fact prove a continuing violation, since defendant's violations of the reporting and recordkeeping requirements of its permit continued after plaintiff filed its complaint. Defendant did not file a complete DMR until three months after the complaint was filed, and failed to maintain records of monthly sampling as required by the FWPCA and the terms of defendant's permit. Although the failure to sample occurred solely before plaintiff filed suit, defendant cannot defend against its failure to file complete DMRs or retain records by noting that the underlying data was never collected in the first place. To allow such a defense to the court's jurisdiction would effectively provide a permitholder with the opportunity to escape liability.

The court rules that reporting requirements such as the requirement to file DMRs are violations of an "effluent standard or limitation" within the meaning of FWPCA §505(a), since §505(f)(6) defines "effluent standard or limitation" to include NDPES permits or conditions contained in such permits. The court holds that defendant is liable, since defendant's reporting requirements were expressly made conditions of its permit. The court holds that plaintiff is not estopped from seeking civil penalties in excess of the $130,000 mentioned by plaintiff's counsel at trial. Plaintiff's complaint asked for $10,000 per day of violation, and the complaint constitutes the formal request for damages. Moreover, the trial court has wide discretion in determining civil penalties that cannot be limited by counsel's informal comments. Plaintiff is also not estopped from seeking damages higher than the purported trial request as a result of its alleged use of this number in a dispute over the admission of certain expert testimony.

The court holds that the trial court did not err in denying defendant's post-trial motion for recusal. Although the judge was once a member of plaintiff's organization, he resigned upon his appointment to the bench 13 years before this litigation began, informed the parties of his earlier membership during a pretrial conference, and offered to recuse himself at that time. The court also holds that the trial court did not err in failing to make its earlier offer of recusal on the record.

[The district court's decisions are published at 15 ELR 21012 and 17 ELR 20346.]

Counsel for Appellant
David F. Albright
Semmes, Bowen & Semmes
250 W. Pratt St., Baltimore MD 21201
(301) 539-5040

Counsel for Appellee
John F. King
Anderson, Coe & King
800 Fidelity Bldg., Charles at Lexington, Baltimore MD 21201
(301) 752-1630

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and BUTZNER, Senior Circuit Judge.