ELR Citation: ELR 21558
No(s). 6:92 CV 564 (E.D. Tex. Jun 28, 1993)

The court holds that an aluminum manufacturer's violation of a daily average limitation in its national pollution discharge elimination system permit issued under the Federal Water Pollution Control Act (FWPCA) constitutes a violation for every day of that month, and the government's action for civil penalties is not barred by the five-year statute of limitations in 28 U.S.C. §2462 because the limitations period does not begin to run on the date the violations occurred or when the U.S. Environmental Protection Agency (EPA) could have discovered them. The court first denies the manufacturer's motion for summary judgment that 129 violations alleged by the government are barred by the statute of limitations. The government filed its complaint within five years after the manufacturer filed its discharge monitoring reports (DMRs) of the violations. The court rejects the manufacturer's argument that the period began to run from the date that EPA should have discovered the violations, because Congress was fully aware of EPA's limited resources when it drafted the FWPCA provisions requiring the permittee to monitor and report its own effluent discharges. To allow the permittee to benefit from EPA's failure to inspect and immediately discover violations would frustrate the purposes of the FWPCA. Further, the manufacturer does not allege that it was in any way prejudiced or that its ability to defend this suit was so seriously impaired that dismissal of the claim for the challenged violations is justified.

The court next rejects the manufacturer's argument that the DMRs are not conclusive evidence of its permit violations because five violations were insignificant or based on imprecise measurements. Relying on precedent, the court further holds that the manufacturer's violation of a daily average constitutes a violation for every day of that month. While the statute does not address directly the matter of monthly average limitations, it does speak in terms of penalties per day of violation, rather than penalties per violation. Finally, the court denies summary judgment on the manufacturer's liability for violations at one outfall where the permit required the manufacturer to monitor pollutants when it restarted a chemical reactor. The manufacturer argued that the permit's monitoring requirements at the outfall never became effective because the manufacturer used the reactor to purify contaminated aluminum, not to recommence the production process. In spite of the evidence submitted by the government that the permit's use of the term "restart" encompasses the use of the reactor for any purpose, the court finds some legitimate basis for dispute over the correct meaning of the term "restart" as intended by the parties and used in the permit.

Counsel for Plaintiff
Vicki A. O'Meara, Courtney A. Johnson
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Herbert A. Yarbrough III
Conner, Gillen, Yarbrough & Anderson
613 Shelley Park Plaza, Tyler TX 75701
(903) 581-8600