Atlantic States Legal Foundation was engaged in well over one hundred citizen enforcement actions to force polluters to comply with the federal Clean Water Act. When a case goes to court, Atlantic States proves to be a formidable adversary, and has obtained court decisions, which clarify the liabilities and responsibilities of polluters, sharpening the teeth of citizen watchdogs.
Here is an overview of some recent decisions.
Atlantic States Legal Foundation v. Tyson Foods, Inc., 31 ERC 1201 (April 5, 1990)
In April 1987, Atlantic States initiated a citizen enforcement action against Tyson Foods for illegal discharges of fecal coliform, oil and grease, and other pollutants, at its Blountsville, Alabama, poultry processing plant. That August, ASLF filed a complaint alleging 57 daily and 16 monthly violations.
The following December, Gwaltney of Smithfield v.Chesapeake Bay Foundation was decided, barring citizens from suing for past violations when ongoing violations have ceased (see sidebar at left: Tying the Hands…). ASLF filed an amended complaint, to conform to that Supreme Court decision, which alleged violations occurring since the action had been initiated. In March 1988, the district court decided to stay (postpone) the proceedings “until such time as the effectiveness of [an] upgraded wastewater facility at Tyson’s Blountsville plant can be evaluated[,]” reasoning that “[w]hen the pollution has ceased, the action is moot and it is doubtful whether civil penalties may be recovered in such a case.”
In November 1988, both parties moved for summary judgment, a ruling by the judge based on uncontested facts. Since the filing of Atlantic States’ original complaint in August 1987, Tyson had violated the Act with an additional 34 daily and eight monthly violations. Tyson did, however, come into compliance beginning in March 1988. In March 1989, approximately 19 months after Atlantic States had filed its complaint, the district court ruled in favor of Tyson. Summary judgment was granted on grounds that since the violations had stopped before the decision was rendered, they should be seen as past violations and therefore, under the principle of Gwaltney, not subject to citizen enforcement.
When Atlantic States elected to appeal this decision, the Court of Appeals was faced with the question of whether or not Tyson’s compliance after the beginning of the enforcement action rendered Atlantic States’ suit moot. The fact that the proceedings had been stayed was an important aspect because it gave Tyson time to come into compliance.The appellate court held that even though Tyson was in compliance at the time of the original decision, the company was still liable for all the violations alleged in the citizen enforcement action.The court reasoned that future defendants shouldn’t try to escape liability by delaying litigation until they had a chance to come into compliance, and then cite the Gwaltney principle as a defense. Importantly, this decision limits the ability of violators to escape responsibility for illegal discharges by delaying litigation until the polluter can come into compliance.
Atlantic States Legal Foundation v. Reynolds Metals Co., p73 31 ERC 1156 (February 26, 1990)
In March 1988, Atlantic States notified Reynolds in Massena, N.Y.,of its intent to bring a citizen suit to stop further pollution of the St. Lawrence River. The suit alleged many Clean Water Act violations, including illegal discharges of PCBs. Atlantic States argued that it is illegal to discharge a pollutant, PCBs in this case, not specifically regulated by the permit. Reynolds did not dispute that it was discharging PCBs, but said that since its permit did not contain PCB limits, they could not be held liable for PCB discharges.
In a February 1990 order granting summary judgement, Judge Munson agreed with Atlantic States, writing, “a person of reasonable intelligence would certainly know that PCBs are pollutants and [under New York State law] … may not be discharged unless identified and authorized by its permit.”
While polluters would have us believe that it’s OK to discharge a pollutant not regulated by a permit, this decision clarified the law in favor of citizen environmental plaintiffs by stating that, at least in New York State, the discharge of pollutants not specifically regulated by permit is illegal.
Atlantic States Legal Foundation v. Universal Tool & Stamping Co., Inc.,<P255D> 735 F.Supp.1404 (D.C. N.D. Ind, April 23, 1990).
The Clean Water Act contains a provision whereby citizen suits can be precluded during the required sixty-day notice period by a state or federal agency, if that agency is “diligently prosecuting” an action in court against the polluter. In essence, the citizen plaintiff can be bumped off a case by the agency action, a truly frustrating event. (see sidebar: All That Work for Nothing?)
Universal Tool argued that an administrative action being pursued against it by the Indiana Department of Environmental Management (IDEM) should have the effect of bumping Atlantic States from the case, leaving it entirely in the hands of IDEM. Richard J. Kilsheimer, attorney for Atlantic States, successfully argued to the district court that the enforcement action by IDEM was not comparable to that anticipated by Atlantic States’ citizen suit. In fact, Universal Tool had undertaken measures to comply with its permit only after receiving notification of intent to sue by Atlantic States.
The decision states: “In light of IDEM’s apparent willingness to bend its procedures on Universal’s behalf, the fact that Universal continued to violate its permit limitations long after the administrative proceeding was commenced, the lenient penalty assessment of only $10,000 for the hundreds of reported violations, despite statutory authority for penalties of $25,000 per violation, and [Universal President] Rittenour’sac knowledgement that it was plaintiff’s [Atlantic States’] notice of intent to sue, and not the IDEM proceeding, that had moved Universal to take steps to comply with its permit, it is clear that the IDEM proceeding was not ‘diligent prosecution’ under the Clean Water Act.” This case clarifies the right of citizens to bring an enforcement action even when an administrative action has been undertaken, if that administrative action is not tough enough to equal enforcement under the Act.
These three cases have increased the effectiveness of citizen suits under the Clean Water Act, constituting precedent useful to citizen watchdogs, whose bite is as bad as their bark.
Contact ASLF here.