ELR Citation: ELR 20830
No(s). 1:95-CV-2550-FMH (N.D. Ga. Dec 11, 1996)

The court holds that the city of Atlanta's three water pollution control plants (WPCPs) achieved phosphorus discharge reductions mandated by state statutes, their state-issued national pollutant discharge elimination system (NPDES) permits, and a consent order between the city and the Georgia Environmental Protection Division by the applicable deadline. The court first holds that environmental group plaintiffs have standing under the Federal Water Pollution Control Act (FWPCA). A review of the statutory scheme reveals that an "effluent standard or limitation" under the FWPCA includes an effluent standard or limitation established by a state to further the goals of the FWPCA. The FWPCA expressly contemplates stricter state effluent and other limitations, allows states to incorporate those limitations into a state-issued permit, and authorizes a citizen suit to enforce those limitations. The court next holds that the city had until July 4, 1996, to comply with the phosphorus limit. Under the consent order and the permits, the city is not required to reach the limitation until July 4, 1996, at which time it will be permitted to average the total phosphorus discharge among its three WPCPs to meet the limitation. Also, under the 1991 version of a state water-pollution statute that established an earlier deadline, the consent order controlled compliance with the phosphorus discharge limits over the statute until July 4, 1996. And even without the consent order exception, the 1996 version of the statute allows the city to average the discharges from the three WPCPs and to have until July 4, 1996, to meet the limit. The court also holds that nothing in the language of either version of the statute can be read to condition the July 4, 1996, compliance extension on conformance with the consent order or to impose retroactive liability.

The court next holds that the city complied with the consent order's requirement that it make its best efforts to achieve compliance with the limitation by December 31, 1993. Plaintiffs admit that the city has steadily decreased phosphorus concentrations at the three WPCPs over the last five years, and plaintiffs have produced no evidence to suggest that the city has failed to ahieve optimum operation of its WPCPs. The court next holds moot plaintiffs' claim that the city violated the consent order's requirement that it install a required chemical feed system by December 1991, because the city's one-month delay does not constitute an ongoing violation of the FWPCA. The court next holds that the city's deviations from the list of upgrades contained in the consent order and incorporated into the NPDES permits do not constitute an ipso facto violation of a schedule of compliance within the meaning of the FWPCA. The interpretation of "schedules of compliance" urged by plaintiffs would not permit deviation from this plan even if subsequent design improvements or technological advancements or other environmental measures were to render these upgrades unnecessary to comply with an effluent limitation. Further, the principle of anticipatory breach does not comport with a statutory scheme that allows revisions to obligations prior to the effective date of those obligations. The court thus holds that the city's failure to comply with deadlines that have not yet passed does not constitute a violation of the FWPCA. The court next denies plaintiffs' motion to prevent a county-intervenor from participating in discovery before liability is determined, and grants plaintiffs' motion to restrict the county from questioning plaintiffs' witness on issues outside the scope of the remedial issues in this case.

Counsel for Plaintiffs
David H. Pope
Carr, Tabb & Pope
1355 Peachtree St. NE, Ste. 2000, Atlanta GA 30309
(404) 876-7790

Counsel for Defendant
Richard A. Horder
Kilpatrick & Cody
1100 Peachtree St., Ste. 2800, Atlanta GA 30309
(404) 815-6500