United States
Environmental Protection
Agency
Office of Enforcement and
Compliance Assurance
(2201A)
EPA 300-R-9-007
September 1999
Water Enforcement Bulletin
Issue 16
Water Enforcement Division
September 1999
Eric V. Schaeffer
Director, Office of
Regulatory Enforcement
Brian J. Maas
Director, Water
Enforcement Division
Editor: Joseph G. Theis
(202) 564-4053
Theis.Joseph@epa.gov
An Update of Cases Relating to Water Enforcement
October 1998 - June 1999
Cases in Review
In This Issue
Second Circuit holds that discharge of waste slurry through drain into
storm water discharge system that led into natural tributary of a
navigable water constituted discharge of pollutants to waters of the
U.S.: United States v. TGR Corp
1
District court holds that the purposeful relocation of materials within
wetland does not constitute incidental fallback, but is more similar to
sidecasting, which is subject to Section 404 of the CWA: United
States v. Bay-Houston Towing Co. 15
D.C. Circuit finds that EPA reasonably interpreted the CWA as
precluding challenge to a state- issued permit in a federal
enforcement action and upholds administrative penalty for violations
of NPDES storm water permit related to discharges from roofs of
buildings and gutters: GMC v. U.S. EPA 28
This publication can be found on the Internet at http://www.epa.gov/oeca/ore/water/waterbull.html
Recycle / Recyclable. Printed with Soy/Canola Ink on paper that contains at least 30% recycled fiber.
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September 1999
Recent Fourth Circuit Decision in U.S. v. Smithfield Foods, Inc.
In a decision issued too late to include in this publication of the Water Enforcement Bulletin, the Fourth Circuit
Court of Appeals upheld the finding of liability and wrongful profits (economic benefits) analysis used by the
District Court for the Eastern District of Virginia in assessing the largest civil penalty in the history of the Clean
Water Act. U.S. v. Smithfield Foods. Inc.. No. 97-2709, 1999 U.S. App. LEXIS 22,092 (4th Cir. Sept. 14, 1999),
decision below reported at 972 F. Supp. 338 (E.D. Va. 1998). The Court of Appeals remanded the decision to the
District Court solely to correct an admitted error of approximately 4% in the government expert's calculation of
the penalty. The Fourth Circuit specifically upheld the District Court's assessment of a separate penalty for each
type of violation (i.e., monthly, daily maximum) finding that "this method of counting violations creates the proper
incentive for polluters to comply."
Note: The Water Enforcement Bulletin is available on the Internet at:
http://www.epa.gov/oeca/ore/water/waterbull.html
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Disclaimer
The Water Enforcement Bulletin is intended primarily for the use of EPA employees. The summaries contained
in the Water Enforcement Bulletin do not represent an official Agency position with respect to matters in litigation,
nor are they intended to create any rights, duties or obligations, either implied or otherwise, in any third parties.
To make inquiries with regard to the Water Enforcement Bulletin please contact Joseph G. Theis (2243A), U.S.
EPA, 401 M Street, SW, Washington, DC 20460, (202) 564-4053, e-mail: theis.joseph@epa.gov.
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Issue 16 Water Enforcement Division September 1999
TABLE OF CONTENTS
I. Clean Water Act (CWA) 1
A. Jurisdictional Scope of the CWA 1
1. Second Circuit holds that discharge of waste slurry through drain into storm water discharge
system that led into natural tributary of a navigable water constituted discharge of pollutants to
waters of the U.S.: United States v. TGR Corp. 1
2. District court holds isolated wetlands provide a sufficient basis for CWA regulation: United
States v. Krilich 1
3. District court holds that groundwater is not included within the definition of "navigable waters":
Patterson Farm. Inc. v. City of Britton 2
4. District court dismisses challenge to USAGE CWA Section 404 jurisdiction over wetlands
adjacent to navigable waters: United States v. Hartz Construction Co.. Inc. 3
B. Discharge of Pollutants/Point Sources 4
1. District court holds trap shooting facility and each firing station is a point source: Stone v.
Naperville Park District 4
2. District court holds that CAFOs include not only the ground where the animals are confined but
also the lagoons and systems used to transfer the animal wastes to the lagoons as well as
equipment which distributes and/or applies the animal wastes produced at the confinement area
to fields outside the animal confinement area: Community Ass'n for Restoration of the Env't v.
Sid Koopman Dairy 5
3. District court holds that violations were not caused by "single operational upsets" and that EPA
could enforce effluent limits for internal outfalls: United States v. Gulf States Steel. Inc. 6
C. State/Tribe Water Quality Standards 6
1. District court holds that EPA has discretion to determine at what point it is appropriate for the
Agency to deem a State's failure to submit TMDLs a constructive submission meriting
intervention, but that EPA's duty to establish TMDLs where a State fails to do so is not
committed to Agency discretion by law, but must be fulfilled promptly: Natural Resources
Defense Council v. Fox 6
2. District court holds that, with regard to when EPA must act given no State submission of
TMDLs, the CWA provides a readily ascertainable deadline for EPA action and, as a result, at
some point beyond July 26, 1979 the delay becomes unreasonable and EPA's duty to act is
triggered: American Canoe Ass'n v. U.S. EPA 7
3. ALJ holds that use of the trophic index to determine level of Section 303(b) impairment
constitutes a "binding norm" and should have been subject to formal notice and comment:
Western Carolina Regional Sewer Authority v. South Carolina Department of Health and
Environmental Control 9
D. NPDES Permits 9
1. Fifth Circuit holds that EPA did not violate the APA when it set zero discharge limits on
produced water and produced sand in the coastal oil and gas effluent limitation guidelines, nor
did EPA act in a manner contrary to the CWA when it set separate limits for Cook Inlet without
designating it as a separate subcategory: Texas Oil & Gas Ass'n v. U.S. EPA 9
2. Tenth Circuit holds that plaintiff cannot use CWA citizen suit provisions to challenge a NPDES
permit that does not address the discharge of pollutants to groundwater where EPA determined
during permit renewal that the permittee did not need a permit for groundwater seepage:
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Issue 16 Water Enforcement Division September 1999
Notice: Rules of the Tenth Circuit Court of Appeals may limit citation to unpublished opinions.
Please refer to the rule of the U.S. Court of Appeals for this Circuit (10th Cir. R. 36.3). Amigos
Bravos v. Molycorp 11
3. District court holds that a NPDES storm water permit is not required for the construction of
farming access roads, and that construction activities that disturb less than five acres and are not
part of a larger common plan of development, are not subject to NPDES permit requirements:
Mamo v. Galiher 11
E. Section 404/Wetlands 12
1. Court of Appeals for the Federal District holds that denial of Section 404 permit for the dredge
and fill of underwater lake-bottom property did not constitute a compensable government taking:
Forest Properties. Inc. v. United States 12
2. Court of Federal Claims holds that USAGE denial of permit to fill lake bottom for residential
development does not constitute a taking requiring compensation under the Fifth Amendment:
Palm Beach Isles Ass'n v. United States 14
3. District court dismisses suit to enforce violation of Section 404 permit terms for lack of subject
matter jurisdiction where violation resulted in discharge of pollutants but not a discharge of
dredge and fill material: United States v. United Homes 14
4. District court holds that the purposeful relocation of materials within wetland does not constitute
incidental fallback, but is more similar to sidecasting, which is subj ect to Section 404 of the
CWA: United States v. Bay-Houston Towing Co. 15
5. District court denies defendant's motion to bar $1,257,500 penalty for wetlands violations:
United States v. Krilich 16
6. District court rejects Home Builders Association's claims that agreement between USAGE and
other federal, state and local agencies designed to coordinate various programs to regulate soil
erosion and sediment control exceeds USAGE statutory and regulatory authority: Home Builders
Ass'n of Greater Chicago v. USAGE, et al. 16
7. District court approves settlement agreement regarding future regulation and study of
mountaintop mining operations: Bragg v. Robertson 17
8. District court dismisses challenge to USAGE CWA Section 404 jurisdiction over wetlands
adjacent to navigable waters: United States v. Hartz Construction Co.. Inc. 19
9. District court holds that the continuing presence of a reconstructed fishpond wall without any
current governing permit does not violate the CWA since the original placement was conducted
pursuant to proper authorization under a nationwide permit: Harold Wright v.
Lance Dunbar et al. 19
F. Citizen Suits 20
1. Standing 20
a. Fourth Circuit holds that two non-profit environmental organizations lacked standing because
they failed to establish injury in fact and failed to establish that the alleged injuries in fact
were fairly traceable to defendant's conduct: Friends of the Earth. Inc. v. Gaston Copper
Recycling Corp. 20
b. District court holds that civil penalties sought for ongoing violations of the CWA specifically
deter such violations sufficient to satisfy the redressibility requirement for purposes of
establishing standing: Natural Resources Defense Council v. Southwest Marine 21
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Issue 16 Water Enforcement Division September 1999
2. Enforcement Under Comparable Law as Bar to Citizen Suit 22
a. Sixth Circuit holds that series of four administrative enforcement orders constituted diligent
prosecution under a comparable State law sufficient to bar citizen suit: Jones v. City of
Lakeland 22
b. Ninth Circuit holds that a CWA citizens' suit, for violations that continued beyond the
timeframe specified in a State enforcement action, is not barred by such enforcement action
where no penalty was imposed under the State action and environmental enhancement
projects imposed under the State action did not address the continuing violations: Northern
California River Watch v. Sonoma County Water Agency 22
c. District court holds that the prosecution of a State enforcement action that addresses the same
claims as a citizen suit does not bar the citizen suit where the State action is filed after the
citizen suit has been filed: Long Island Soundkeeper Fund. Inc. v. New York City Dep't of
Envtl. Protection 23
d. District court holds that CWA citizen suit not precluded by State Notice of Violation and
Cease and Desist Order issued prior to filing of action, despite the fact that State took further
administrative action with a penalty assessed and collected after the suit was filed: Old
Timer. Inc. v. Black-Hawk Central Sanitation District, et al. 24
e. District court grants summary j udgment motion of citizen suit plaintiff regarding CWA
liability of defendant wastewater treatment plant based on finding that defendant had
discharged heat exceeding upstream temperature of receiving waters, despite the fact that
defendant's NPDES permit did not include any limitation for heat: Pinev Run Preservation
Ass'n v. County Comm'rs of Carroll County 26
G. Enforcement Actions/Liabilities/Penalties 28
1. D.C. Circuit finds that EPA reasonably interpreted the CWA as precluding challenge to a state-
issued permit in a federal enforcement action and upholds administrative penalty for violations of
NPDES storm water permit related to discharges from roofs of buildings and gutters: GMC v.
U.S. EPA 28
2. District court holds ALJ finding of liability was based on substantial evidence: Smith v.
Hankinson 28
3. District court places 176 sewage treatment facilities in receivership based on overwhelming
evidence of repeated, unabated violations of the CWA and the LEQA over an extended period of
time, as well as defendant's blatant and continued violation of a consent decree intended to
remediate such violations: United States v. Acadia Woods 29
4. District court holds that violations were not caused by "single operational upsets" and that EPA
could enforce effluent limits for internal outfalls: United States v. Gulf States Steel. Inc. 30
5. EAB holds no reversible error or abuse of discretion occurred where ALJ imposed $2,000
penalty for wetlands violation: In re: Britton Construction Co.. BIC Investments. Inc.. and
William and Mary Hammond 32
H. Criminal Cases 33
1. Second Circuit affirms criminal convictions for knowing discharge of pollutants and for the
negligent discharge of oil: Notice: Rules of the Second Circuit Court of Appeals may limit
citation to unpublished opinions. Please refer to the rules of the United States Court of Appeals
for this circuit. United States v. Superior Block & Supply Co. 33
2. Sixth Circuit reverses grant of motion for judgment of acquittal and reinstates conviction for
discharge of pollutants from a ship without a NPDES permit: United States v. M/G Transport
Services. Inc. 34
in
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3. Ninth Circuit affirms criminal conviction for improper indirect discharge: United States v.
Iverson 35
4. Ninth Circuit upholds sewage sludge hauler's sentence and conviction for aiding and abetting the
unlawful disposal of sewage sludge, for conspiracy and mail fraud: United States v. Cooper 36
5. District court denies motion by CWA defendant to suppress evidence as unconstitutionally
obtained: United States v. Johnson, et al. 37
I. Section 311 (Oil and Hazardous Substance Liability) 38
1. District court holds that § 311 is not the exclusive CWA enforcement authority available to
address an accidental spill of petroleum, but that § 309 also provides such authority: United
States v. Texaco Exploration & Production Co.: United States v. Mobil Exploration and
Production. Co. 39
2. District court upholds $5,000 CWA penalty assessment imposed by U.S. Coast Guard against an
oil terminal facility that discharged a harmful quantity of oil into an adjacent bay based on
finding that Coast Guard's determination was supported by substantial evidence in the
administrative record and was not an abuse of discretion:
BP Exploration & Oil. Inc. v. U.S. DOT and USCG 40
3. ALJ assesses a civil penalty of $24,876 for violations of SPCC requirements and oil discharge
prohibitions: In the Matter o/Tepperell Associates 41
II. Other Statutes 42
A. Oil Pollution Act (OPA) 42
1. Fourth Circuit holds that, under the OPA, compensable removal costs and damages are those that
result from the discharge of oil or substantial threat of discharge into navigable waters or
adjacent shorelines: Gatlin Oil Company. Inc. v. U.S. DOT 42
2. District court holds that, in the case of abandonment, the OPA provides for liability of both
previous and current lessees/operators: United States v. Bois D' Arc Operating Corp. 43
B. Emergency Planning and Community Right-To-Know Act (EPCRA) 43
1. EAB finds that use of EPA self-disclosure settlement policy in litigation was inappropriate, but
affirms civil penalty amount calculated based on policy due to concerns regarding fairness: In
re: Bollman Hat Company 43
2. EAB holds that "justice" penalty adjustment factor may only be applied to recognize
environmentally beneficial projects when other penalty adjustment factors are insufficient or
inappropriate to achieve fair and just result: In re: Catalina Yachts. Inc. 44
C. Clean Air Act (CAA) 45
1. D.C. Circuit remands revised NAAQSs for particulate matter and ozone based on
unconstitutional delegation of legislative authority: American Trucking Ass'n v. U.S. EPA 45
D. Surface Mining Control and Reclamation Act (SMCRA) 47
1. Court of Federal Claims holds that Secretary of Interior's denial of a surface mining permit does
not result in a compensable taking where mining activity would be enjoinable as public nuisance
under State law: Rith Energy. Inc. v. United States 47
IV
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I. Clean Water Act (CWA)
A. Jurisdictional Scope of the CWA
1. Second Circuit holds that discharge
of waste slurry through drain into
storm water discharge system that
led into natural tributary of a
navigable water constituted
discharge of pollutants to waters of
the U.S.:
United States v. TGR Corp., No. 171 F.3d 762 (2nd
Cir. Mar. 26, 1999).
Defendant TGR Corp., appealed its conviction for
knowingly discharging pollutants into waters of the
U.S. in violation of the CWA. Defendant's company
was in the business of removing and disposing of
materials that contained asbestos, and employees
of defendant's company had discharged a waste
slurry containing asbestos and other pollutants into
a drain that led to a storm water discharge system
and subsequently to Grasmere Brook, which the
district court had found to be a tributary of Ash
Creek, a navigable water of the U.S. On appeal,
defendant argued that Grasmere Brook was not
part of "waters of the U.S.," but rather was a
municipal separate storm sewer. Defendant also
asserted that Grasmere Brook was part of a
municipal waste treatment system and, thus, was
expressly excluded from coverage under the CWA.
After observing that several Circuit Courts have
found that Congress intended the definition of
"waters of the United States" to be construed
broadly and that use of the term "navigable" in the
CWA was of limited import, the court considered
defendant's arguments. The court found
defendant's arguments that Grasmere Brook was
part of a municipal separate storm sewer or a
municipal waste treatment system to be without
merit. The court observed that pursuant to 40
C.F.R. § 122.26(b)(8), a municipal separate storm
sewer must be a conveyance "owned or operated
by a State, city, town, borough, county, parish,
district, association or other public body," and must
be "[d]esigned or used for collecting or conveying
storm water." The court found that testimony had
clearly established that the Brook was not owned or
operated by any public body. Further, the court
found that the waste treatment system exclusion
applied only to "manmade bodies of water which
neither were originally created in waters of the
United States... nor resulted from the impoundment
of waters of the U.S." The court concluded that,
given the evidence presented that Grasmere Brook
was a natural waterway that housed "aquatic life
and water fowl" and flowed into Ash Creek, an
undisputed navigable waterway, Grasmere Brook
could not be considered a waste treatment system.
The court concluded that Grasmere Brook was
a natural tributary of a navigable water, and that
tributaries of navigable waters constitute waters
of the U.S. for purposes of the CWA. The court
affirmed defendant's conviction.
2. District court holds isolated
wetlands provide a sufficient basis
for CWA regulation:
United States v. Krilich. 1999 U.S. Dist. LEXIS4191
(N.D. II. Mar. 24, 1999).
The parties had previously entered into a consent
decree that addressed CWA violations involving
wetlands in an area developed by defendants.
Subsequently, defendants were held to have
violated the terms of the consent decree (deadlines
for a mitigation plan) and were subject to a
substantial penalty under the terms of the decree.
(See, United States v. Krilich, 948 F. Supp. 719
(N.D. II. 1996)), which was upheld on appeal with
the exception of a miscalculation of the penalty
amount. (See, United States v. Krilich, 126 F.3d
1035 (7th Cir. 1997)). The final penalty of
$1,257,500 was entered December 15, 1997. In
the present action, defendants moved to bar
enforcement of this penalty.
Defendants argued that the district court had lacked
subject matter jurisdiction to enforce the mitigation
plan deadlines because the land improperly filled
did not constitute a wetland under the CWA or did
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not have a sufficient connection with interstate
commerce to invoke federal jurisdiction. The court
considered this second point and found that
"both presently and in 1996, precedent in this
circuit supports that isolated wetlands are a
sufficient basis for CWA regulation." The court
acknowledged that the Ninth Circuit was in
agreement and that the Fourth Circuit had reached
a contrary position, but concluded that there
continued to be a "colorable basis for exercising
jurisdiction over the decree's subject matter."
Defendants also argued that the decree should
have been modified to reflect more recent
precedents that suggest that filled lands do not fall
within the scope of the CWA. (See, United States
v. Lopez, 514 U.S. 549 (1995) and United States v.
Wilson. 133 F.3d 251 (4th Cir., 1991)). The court
dismissed this argument, noting that even if
defendants were correct, the decree would have
been vacated as of the effective date of the court's
decision. The court explained that the rule that
consent decrees may or must be modified to
reflect changed circumstances, including
significant changes in the law, is limited to
relief from prospective application of the decree
and, thus, here would not affect defendants'
violation or penalty. The court denied defendants'
motion to bar enforcement of the penalty.
3. District court holds that
groundwater is not included within
the definition of "navigable waters":
Patterson Farm, Inc. v. City of Britton, 22 F. Supp.
2d 1085 (D. S.D. Sept. 29, 1998).
Plaintiff, Patterson Farm, Inc., a farming corporation
located near Britton, South Dakota, instituted this
action against the City of Britton (City) under the
citizen's suit provision of the CWA. Plaintiff also
included pendent State law claims and sought
injunctive relief and damages.
In Counts I and V of the complaint, plaintiff asserted
as a pendent State law claim that the City violated
the one-time irrigation order issued by the South
Dakota Department of Environment and Natural
Resources (DENR) by irrigating water from its
industrial lagoons that may have exceeded effluent
standards when the ground was both frozen and
saturated and posting no warning signs. Plaintiff
also claimed that the municipal lagoons were
negligently maintained which resulted in the
unlawful drainage of sewage, pollutants, and
contaminants onto plaintiff's property. These
alleged circumstances constituted nuisance under
State law.
In Counts II and VI, plaintiff asserted another
pendant State law claim that the City was negligent
in its operation and maintenance of the industrial
and municipal lagoons based on the same claimed
facts. Counts III and VII alleged violations of State
environmental law. In Counts IV and VIII, plaintiff
claimed the City violated the federal CWA when it
violated 1) the order issued by DENR; 2) other
effluent standards or limitations; and 3) best
management practices as they relate to the
municipal lagoons. Plaintiff also claimed the City
violated federal law when it operated the industrial
lagoons without a NPDES permit and allowed an
unauthorized discharge of sewage and pollutants
into navigable waters.
The City filed a motion for summary judgment
claiming the court lacked subject matter jurisdiction
to hear the federal and pendent State law claims;
plaintiff lacked standing because all alleged
violations were past violations; and the City was
immune from liability for the State law claims of
nuisance and negligence because it had no liability
insurance. Plaintiff filed a cross motion for
summary judgment restating the claims in the
complaint.
The court, granting in part the City's motion for
summary judgment as to Counts IV and VIII, found
the following: 1) the industrial lagoon facility fell
within the regulatory definition of a POTW, and as
such was specifically excluded from the NPDES
permit requirement provisions; 2) the court lacked
subject matter jurisdiction over the alleged violation
of the DENR order because, even if true, it was a
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wholly past violation of the CWA for which citizen
suits cannot be maintained; 3) the court lacked
subject matter jurisdiction over the alleged
discharges into the groundwater because
groundwater is not included within the CWA's
definition of "navigable waters;" and 4) the
alleged municipal lagoon violations were without
merit because storm sewer systems were exempt
from federal and State regulations for a municipality
of less that 100,000 people, as well as falling within
the exclusion of groundwater from the CWA.
Because material facts were in dispute as to
whether the industrial lagoon facility had been in
compliance with the CWA, the court held neither
party was entitled to summary judgment as to this
aspect of Counts IV and VIII. Finally, with respect
to Counts IV and VIII, the court granted plaintiff's
motion for an order compelling the production of
documents because the documents sought were
not privileged material and were relevant to the
claim of ongoing NPDES permit violations.
In addition, the court found that the City was
immune from liability for the State law claims of
nuisance and negligence because liability for
pollution was expressly not covered by the City's
insurance policy. Therefore, the court granted the
City's motion for summary judgment as to Counts I,
II, III, V, VI, and VII.
4. District court dismisses challenge to
USAGE CWA Section 404 jurisdiction
over wetlands adjacent to navigable
waters:
United States v. Hartz Construction Co., Inc., 1999
U.S. Dist. LEXIS 9126 (N.D. II. June 14, 1999).
This matter arose out of a CWA civil enforcement
action in which the government alleged that
defendant Hartz Construction Co., Inc. (Hartz) had
discharged dredged or fill material into waters of the
U.S. without a Section 404 permit. Hartz also was
sued for failing to report information requested by
EPA pursuant to an information request made
under CWA Section 308 to assist in the Agency
investigation of Hartz's alleged discharges.
The matter revolved around the scope of the
USAGE'S statutory authority to regulate discharges
to waters of the U.S. under the Section 404
program. Section 404(a) of the CWA prohibits the
discharge of dredged orfill materials into "navigable
waters" without a permit. "Navigable waters" are
defined in Section 502 as "waters of the United
States, including the territorial seas." Although the
CWA does not define "waters of the United States,"
EPA and the USAGE have promulgated regulations
at 33 C.F.R. 328.3(a)(3) and 33 C.F.R.
230.3(3)(s)(3) defining the term as follows: "all
waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats,
wetlands, sloughs ... the use or destruction of
which could affect interstate or foreign commerce
...." In what has become known as the "migratory
bird rule," in the preamble to the regulation, the
USAGE explained that the term "other waters"
includes those which "are or would be used as
habitat by other migratory birds which cross state
lines." Under 33 C.F.R. 328.3(a)(7) and 40 C.F.R.
230.3(s)(7), 232.2, wetlands adjacent to navigable
waters (other than wetlands) are also subject to
CWA requirements.
Based on the above statutory and regulatory
authority, the government asserted that wetlands
that Hartz planned to use for development were
wetlands under the "other waters" provision
because at least one of the wetlands was used by
migratory birds and because one of the wetlands
was adjacent to navigable waters. Because Hartz
failed to obtain a Section 404 permit for his
discharges of dredged or fill material, the
government pursued enforcement.
Hartz brought a motion to dismiss the government's
complaint, alleging that the district court lacked
jurisdiction. Hartz's motion relied on two theories:
1) that the regulation under which the government
brought its action was unconstitutional under the
Commerce Clause; and 2) that there was no factual
basis for jurisdiction.
Hartz's Commerce Clause challenge relied on the
Supreme Court's decision in United States v.
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Lopez. 514 U.S. 549. 131 L Ed. 2d 626, 115S. Ct.
1624 (1995). Based on Lopez, Hartz asserted that
the "other waters" regulation under which the
government asserted jurisdiction exceeded
congressional authority because it lacked the
jurisdictional nexus to interstate commerce, the
basis for all CWA jurisdiction. In Lopez, a case
dealing with a Federal law that made it a Federal
offense to knowingly possess a fire arm in a school
zone, the Supreme Court held that the statute was
beyond the scope of the Commerce Clause's grant
of authority to Congress.
The district court rejected Hartz's argument that
Lopez should be read to override existing case law
on the jurisdictional scope of the CWA. First, the
court restated relevant law on this issue from other
Circuits. The court stated that in Hoffman Homes
Inc., vAdministrator, U.S. Environmental Protection
Agency, 999 F.2d 256 (7th Cir. 1993), Leslie Salt
Co. v. United States, 896 F.2d 354 (9th Cir.) cert.
denied, 516 U.S. 955 (1995) and Utah v. Marsh.
740 F.2d 799 (10th Cir. 1984), the Seventh, Ninth
and Tenth Circuits had reviewed the "other waters"
provisions and determined that migratory birds
created a jurisdictional nexis between a wetland
and interstate commerce. The district court also
stated that in United States v. Riverside Bayview
Homes. Inc.. 474 U.S. 121, 88 L. Ed. 419, 106 S.
Ct. 455 (1985), the Supreme Court clearly
supported a broad reading of the term "navigable
waters" to include adjacent wetlands.
In regard to the impact of Lopez on past Commerce
Clause cases, the district court noted that the
Supreme Court had made it clear that in the Lopez
decision it did not intend to overrule any of its
Commerce Clause precedent, but instead viewed
its decision as a refusal to extend the application of
the Commerce Clause further than it already had.
The court also stated that the Seventh Circuit in
United States v. Black. 125 F.3d 454 (7th Cir. 1997)
had given Lopez a narrow reading, and in several
cases, Seventh Circuit district courts addressing the
"other waters" issue since Lopez had continued to
follow the precedent in Hoffman Homes.
Following this lead, the district court stated that
it, too, would follow Hoffman Homes and uphold
the government's regulatory authority. In
making its decision, the court did note that the
Fourth Circuit in United States v. Wilson, 133 F.3d
251 (4th Cir. 1997) had chose to strike down the
"other waters" provision in light of Lopez.
The district court then turned to two other
jurisdictional challenges made by Hartz. First, the
district court rejected Hartz's assertions that the
court lacked jurisdiction because the government
had not shown that the wetlands were "waters of
the United States." The district court stated that if
Hartz believed that the government's complaint
failed to include allegations adequate to support its
right to recovery, the correct vehicle for raising the
question would be a motion under Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to
state a claim.
Second, regarding Hartz's assertion that the court
had no subject matter jurisdiction regarding the
Section 308 action, the district court rejected Hartz
argument that EPA could not demand information
under Section 308 until the Agency established
jurisdiction over the land in question. The district
court stated that on its face, Section 308 gives
EPA jurisdiction to determine whether there is
a CWA violation resulting from alleged improper
activities.
B. Discharge of Pollutants/Point Sources
1. District court holds trap shooting
facility and each firing station is a
point source:
Stone v. Naperville Park District, 38 F. Supp. 2d
651 (N.D. II. Feb. 17, 1999).
Plaintiff Roger Stone brought a CWA citizen's suit
against defendant Naperville Park District that
alleged defendant violated the CWA by discharging
lead shot into navigable waters of the U.S. without
a NPDES permit. Defendant argued that the
shooting range and firing stations did not constitute
a "point source" and therefore plaintiff could not
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September 1999
establish a violation. The court rejected this
argument and found that "the trap shooting
range, as well as each firing station,"
constituted a point source as defined in the
CWA. The court observed that the facility's
purpose was to discharge lead shot (a pollutant);
the facility was discernable, confined and discrete;
and that the facility "channels" shooting by its
design and purpose.
Plaintiff sought an injunction against future
violations, remediation, civil penalties and attorneys
fees and costs. Upon balancing the competing
interests, the court granted an injunction against
any future trap shooting without a NPDES permit.
It denied plaintiffs request for an injunction ordering
remediation, but requested the parties work
together to develop such a plan.
2. District court holds that CAFOs
include not only the ground where
the animals are confined but also
the lagoons and systems used to
transfer the animal wastes to the
lagoons as well as equipment which
distributes and/or applies the animal
wastes produced at the confinement
area to fields outside the animal
confinement area:
Community Ass'n for Restoration of the Env't v. Sid
Koopman Dairy; 1999 U.S. Dist. LEXIS 8348 (E.D.
Wash., May 17, 1999).
Plaintiff, Community Association for Restoration of
the Environment (CARE), had moved for partial
summary judgment on issues that were common to
all four cases. Plaintiff asked the Court to grant
summary judgment declaring that the defendant's
facilities, including manure spreading operations
outside confinement pens, are Confined Animal
Feeding Operations ("CAFOs") and as such are
point sources of pollution subject to the NPDES
permitting program.
The court noted that defendants were incorrect
in asserting that only the area where the
animals are confined and the adjacent areas
without vegetation can be considered a point
source. The court stated that defendant's
position would be contrary to the intent of
Congress as expressed in the CWA and by EPA
in its NPDES regulations. The definition of
"point source" has been subject to broad
interpretation including manure-spreading
vehicles, bulldozers and backhoes. (See,
Concerned Area Residents for the Environment v.
Southview Farm. 34 F.3d 114, 115 (2nd Cir. 1994);
Avoyelles Sportmen's League, Inc. v. Marsh, 715
F.2d 897, 922 (5th Cir. 1983); United States v. Tull.
615 F. Supp. 610, 622 (E.D. Va. 1983); and United
States v. Weisman, 489 F. Supp. 1331, 1337 (M.D.
Fla. 1980)).
The court held that CAFOs include not only the
ground where the animals are confined but also
the lagoons and systems used to transfer the
animal wastes to the lagoons as well as
equipment which distributes and/or applies the
animal wastes produced at the confinement
area to fields outside the animal confinement
area.
To that extent, the court granted plaintiff's motion
for partial summary judgment. However, the court
ruled that there remained genuine issues of
material fact regarding the extent to which the
defendant's lands, the operation of the facilities and
the actions of manure-spreading equipment are
point sources, which were questions of fact for trial.
3. District court holds that violations
were not caused by "single
operational upsets" and that EPA
could enforce effluent limits for
internal outfalls:
United States v. Gulf States Steel, Inc., 1999 U.S.
Dist. LEXIS 8834 (N.D. Ala. June 8, 1999). See
case summary on page 30.
C. State/Tribe Water Quality Standards
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1. District court holds that EPA has
discretion to determine at what point
it is appropriate for the Agency to
deem a State's failure to submit
TMDLs a constructive submission
meriting intervention, but that EPA's
duty to establish TMDLs where a
State fails to do so is not committed
to Agency discretion by law, but
must be fulfilled promptly:
Natural Resources Defense Council v. Fox, 30 F.
Supp. 2d 369 (S.D.N.Y. Nov. 12, 1998).
Plaintiffs brought suit under the CWA and the APA
against EPA claiming that, in light of New York
State's failure for 19 years to establish TMDLs for
impaired State waters as required under CWA §
303(d), EPA unlawfuly failed to intervene and
establish these TMDLs itself. Plaintiffs also claimed
that EPA acted in violation of the CWA and in an
arbitrary and capricious manner with regard to New
York State's recent TMDL submissions for
reservoirs supplying drinking water to New York
City. Plaintiffs further claimed that EPA's failure to
intervene violated the APA because such failure
was "arbitrary, capricious, an abuse of discretion,
and otherwise not in accordance with law."
EPA argued that its duty to intervene was
discretionary and that plaintiffs were therefore
barred from enforcing any such duty under the
CWA or the APA. Alternatively, EPA argued that
New York State's recent submission of TMDLs
rendered EPA intervention unnecessary. Plaintiffs
argued that EPA's duty to intervene was mandatory
and that the law of the case precluded EPA from
now raising the argument that its duty was
discretionary. Despite previously ruling that New
York State's failure to establish TMDLs could be
considered a constructive submission of deficient
TMDLs, the court here agreed to examine the
proper characterization of EPA's duty to intervene
when a State fails to submit TMDLs. The court
reasoned that this question had not been precisely
or directly addressed in its prior decision, that
resolution of the question could affect jurisdiction,
and that an incorrect finding (i.e., wrongly
presuming the existence of a mandatory duty)
would constitute clear error.
EPA maintained that its decision as to when to
deem a State's inaction regarding TMDLs as a
constructive submission was and is
discretionary. The court agreed. The court
stated that the CWA does not establish any duty
under which EPA must deem State inaction in
developing and submitting TMDLs a constructive
submission. It added that neither does the Act
specify a date by which EPA must exercise any
such "deeming" duty. The court observed that the
CWA provides for the first submission of completed
TMDLs by June 26, 1979, and for subsequent
submissions to be completed according to priority
ranking and submitted from time to time. As a
consequence of this statutory framework, the
court concluded that EPA had at least some
discretion to decide when it was appropriate to
deem the State's inaction as a constructive
submission. Based on this conclusion, the
court found that it had no subject matter
jurisdiction over plaintiff's CWA claims.
With regard to the APA claims, EPA argued that
plaintiffs failed to exhaust their administrative
remedies, that the decision to deem submissions of
TMDLs as insufficient is committed to Agency
discretion and, that irrespective of these first two
points, subsequent submission of TMDLs by New
York State established that EPA need not have
intervened. The court rejected each of these
arguments. The court found that there was no
requirement that plaintiffs exhaust their
administrative remedies (i.e., petition EPA) prior
to bringing suit. Similarly, the court found that
EPA's discretion in this instance was not
unfettered. Rather, the court found that the
States, or EPA in their absence, must establish
TMDLs "promptly," meaning "within months, or
perhaps, within a very few years." Therefore, the
court concluded that claims 6 and 7 stated a cause
of action under the APA. Finally, the court
concluded that the facts established by EPA,
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although probative of whether New York State's
actions in submitting TMDLs reduced or eliminated
EPA's duty to intervene, did not eliminate any and
all genuine issues of material fact and, therefore,
did not justify summary judgment.
With regard to the reservoir TMDLs, EPA had
approved eight TMDLs for phosphorus and deemed
ten more to be "informational TMDLs" that were
neither approved nor disapproved. EPA argued
that its decision to approve the eight TMDLs
was discretionary and that, therefore, plaintiffs
had no basis to challenge the decision under
the CWA. The court agreed, holding that the
CWA "leaves review of TM DL submission to the
sound judgment of EPA." As to whether EPA
violated the APA in approving the eight TMDLs, the
court examined whether the TMDLs achieved the
applicable water quality standard, whether they
contained an adequate margin of safety, whether
they contained wasteload allocations and load
allocations, whether the annual loads specified
satisfied the statutory requirement of a "total
maximum daily load," and whether the TMDLs
satisfied the requirement for seasonal variations.
The court found that several issues of material fact
existed and, therefore, denied EPA summary
judgment on this claim.
In addressing the "informational TMDLs," the court
denied summary judgment to EPA, finding that
given that the relevant waters were listed by New
York State at the time as water-quality limited, it
was not clear that under the CWA EPA had
discretion to neither approve or disapprove of the
TMDLs, even though the TMDLs ultimately showed
that the waters were no longer impaired. The court
also denied EPA judgment on the pleadings with
regard to plaintiff's claim that EPA failed to fulfill its
duty to oversee and effectuate the TMDL program.
2. District court holds that, with regard
to when EPA must act given no State
submission of TMDLs, the CWA
provides a readily ascertainable
deadline for EPA action and, as a
result, at some point beyond July 26,
1979 the delay becomes
unreasonable and EPA's duty to act
is triggered:
American Canoe Ass'n v. U.S. EPA, 30 F. Supp. 2d
908 (Dec. 18, 1998).
Plaintiffs American Canoe Association and
American Littoral Society brought suit against EPA
alleging that the Agency had failed to comply with
various duties imposed under the CWA, ESA, and
APA. Plaintiffs alleged 1) EPA violated CWA § 106
by making grants to Virginia absent an adequate
State program for monitoring water quality (count
1); 2) EPA failed to implement § 303(d)(2) and
abused it discretion in violation of the APA when it
approved Virginia's inadequate 1996 303(d) list of
Water Quality Limited Streams (WQLSs) (counts 2
and 3); 3) EPA failed to establish TMDLs and
TMDTLs for Virginia waters as required by the
CWA and, alternatively, that failure to develop
TMDLs was an abuse of discretion under the APA
(counts 4 and 5); 5) EPA's failure to approve or
disapprove of a CPP and review it from time to time
constituted the failure to perform a mandatory duty
under the CWA (count 6); 6) EPA failed to perform
a mandatory, nondiscretionary duty because it
failed to disapprove of Virginia's proposed 1987
CPP (count 7); 7) EPA failed to perform a
mandatory, nondiscretionary duty because it failed
to revoke Virginia's NPDES permitting authority
based on the lack of an approved CPP (count 8); 8)
Actions under counts 6, 7, and 8 violated the APA
(count 9); 9) EPA failed to provide notice and
opportunity for comment on its approval of Virginia's
§ 303(d) list, its approval of Virginia's TMDLs and
TMDTLs, and it approval of Virginia's CPP in
contravention of the APA's procedural requirements
for agency rulemaking (count 10); 10) EPA failed to
comply with the ESA in reviewing, approving and
promulgating WQLSs, TMDLs, TMDTLs, and a
CPP for Virginia, and such failures are reviewable
under the APA (count 12).
With regard to count 1, EPA asserted plaintiffs
lacked standing because they failed to plead facts
that demonstrated any injury had been caused by
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EPA's actions or that such injury would be
redressed by the declaratory and injunctive relief
sought. The court agreed and dismissed this cause
of action.
The court treated counts 2 and 3 as alternative
causes of action. EPA asserted that both were
moot because Virginia's 1998 WQLS list had
subsequently been submitted and partially
approved and partially disapproved by EPA. The
court observed that the mootness doctrine did not
apply in situations where there was insufficient time
to litigate the challenged action and there was a
reasonable expectation the complaining party would
be subject to the same action again. The court
found that there had not been sufficient time for
plaintiffs to challenge the 1996 list of WQLSs, and
that further briefing was needed to address whether
the alleged deficiencies in the 1996 list had been
remedied in the 1998 list. The court also rejected
EPA's argument that its approval of Virginia's 1996
list could not violate the CWA or APA because EPA
had no duty to reach a particular result. Rather, the
court found that EPA's regulations required the
Agency to approve a list if it met the requirements
of40C.F.R. § 130.7(d)(2).
With regard to count 4, EPA argued that the court
lacked subject matter jurisdiction because EPA was
under no mandatory duty to establish TMDLs in the
face of inaction by a state. EPA argued that the
CWA creates a mandatory, nondiscretionary duty
only where it provides a date-certain deadline for
Agency action. EPA alleged the CWA establishes
no such deadline with regard to when EPA must act
given no state submission of TMDLs. The court
disagreed, and found that the CWA did provide
a readily ascertainable deadline for EPA action.
Based on the language of § 303(d), the court
viewed July 26, 1979 as the deadline for EPA
approval of State submissions. The court
recognized that a reasonable delay beyond this
date would not necessarily be deemed a
constructive submission that no TMDLs were
necessary, but noted that at some point beyond
July 26, 1979 the delay becomes unreasonable
and EPA's duty to act was triggered. The court
also rejected EPA's argument that this cause of
action was not ripe for review. Given that count 4
survived, count 5, which was an alternative cause
of action brought under the APA, was dismissed.
With regard to count 6, EPA argued that plaintiffs
failed to state a claim because EPA approved
Virginia's CPP on September, 12, 1973. Noting an
issue of fact that needed to be resolved, the court
allowed this claim to the extent that it alleged EPA
had never approved a CPP for Virginia, but
dismissed it to the extent it sought to enforce a
discretionary duty to review an approved CPP. On
count 7, EPA argued that § 303(e) only requires
EPA to approve an initial CPP. The court found
that EPA was under no mandatory duty to
disapprove of a CPP that failed to include
mandatory elements and therefore dismissed this
count.
On count 8, EPA argued that under CWA §
509(b)(1)(D) proper subject matter jurisdiction was
in the court of appeals. The court agreed and
dismissed this count. The court also dismissed
count 9 based on multiple jurisdictional defects.
EPA moved to dismiss count 10 on various
grounds. EPA asserted that this claim was moot
because EPA had partially approved Virginia's 1998
TMDLs. The court found that it was not clear
whether notice and opportunity for comment had
been provided regarding the 1998 submission, and
accordingly requested further briefing. EPA also
argued that the challenge to EPA's approval of
Virginia's CPP was time-barred, and the court
agreed. Finally, the court allowed the portion of
count 10 related to whether EPA had provided
notice and comment on final agency action
regarding approval or disapproval of TMDLs to
survive, since plaintiffs lacked knowledge regarding
the status of TMDLs due to EPA alleged failure to
make proposed TMDLs and TMDTLs public.
Count 12 was dismissed because the ESA provides
for review of compliance through citizen suits, and
the APA applies only to agency action made
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Water Enforcement Division
September 1999
reviewable by statute and final agency action for
which there is no other adequate remedy in a court.
3. ALJ holds that use of the trophic
index to determine level of Section
303(b) impairment constitutes a
"binding norm" and should have
been subject to formal notice and
comment:
Western Carolina Regional Sewer Authority v.
South Carolina Department of Health and
Environmental Control, No. 98-ALJ-07-0267-CC
(June 21, 1999).
In an administrative matter in South Carolina, the
Western Carolina Regional Sewer Authority
(Authority) successfully challenged the method
used by the South Carolina Department of Health
and Environmental Control (DHEC) to add water
bodies to the Clean Water Act Section 303(d)
impaired list.
The Authority argued that DHEC relied too heavily
on a "trophic state index" to determine the level of
impairment from phosphorus. The Authority also
contended that the trophic state index was not a
satisfactory means to translate the State's narrative
water quality criteria for nutrients to the numeric
criteria used to declare the waters impaired.
The listing had important implications for the
Authority. With the water body on the impaired list,
the State would be required to develop Total
Maximum Daily Loads (TMDLs) to allocate pollutant
loadings among dischargers at levels sufficient to
ensure that State water quality standards were
attained. This would mean more stringent NPDES
permit limits for the Authority and possibly a
moratorium on construction of new sewage
treatment facilities.
DEHC argued that it relied on a number of
indicators to conclude that the waters were
impaired for the aquatic life use for which they were
designated, and that the trophic state index was
only one of these indicators.
The State's Chief Administrative Law Judge
(ALJ) agreed with the Authority, holding that
use of the trophic index constituted a "binding
norm" similar to a regulation that should have
been subject to formal notice and comment.
Accordingly, the ALJ granted summary
judgment to the Authority based on the
"unpromulgated regulation" argument, finding
that although DHEC asserted that the trophic
State index was a tool used, it was in fact a
binding norm and a de facto numeric criterion:
The action was the first time a regulated entity has
successfully challenged a Section 303(d) listing for
nutrients based on narrative criteria.
D. NPDES Permits
1. Fifth Circuit holds that EPA did not
violate the APA when it set zero
discharge limits on produced water
and produced sand in the coastal oil
and gas effluent limitation
guidelines, nor did EPA act in a
manner contrary to the CWA when it
set separate limits for Cook Inlet
without designating it as a separate
subcategory:
Texas Oil & Gas Ass'n v. U.S. EPA. 161 F.3d 923
(5th Cir. Dec. 17, 1998).
Eighteen petitioners challenged EPA's final effluent
limitation guidelines (ELGs) for the coastal oil and
gas producing industry, which were promulgated
January 15, 1997. Three of the petitions also
sought review of a NPDES general permit for oil
and gas producing facilities issued by EPA Region
6 on January 9, 1995. Petitioners challenged
EPA's promulgation of zero discharge limits on
produced water and produced sand, EPA's decision
to set more lenient limits for coastal facilities in
Cook Inlet, Alaska, and Region 6's issuance of a
general permit that banned the discharge of
produced water from coastal facilities in Texas.
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Issue 16
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Texas petitioners asserted that in developing the
zero discharge limit on produced water in the final
ELG, EPA relied on a flawed analysis of the
economic achievability of the limit and the Agency
based its pollutant reduction estimates on a limited
and unrepresentative study (the "10-facility study").
Petitioners argued that EPA excluded from its
consideration wells drilled before 1980 and not
recompleted since then. The court rejected this
argument, finding that although the fact that EPA
did not consider pre-1980 wells in this action may
have had some effect on EPA's analysis, it did not
rise to the level of an "arbitrary and capricious
agency action." Rather, the court found that
because marginally producing wells similar to the
pre-1980 wells had been adequately represented in
the Agency's Section 308 survey data, EPA had
established a rational relationship between its
decision and the basis for that decision. Similarly,
the court rejected petitioners arguments regarding
the 10-facility study, finding that the study only was
used to estimate pollution reduction benefits. The
court stated that the "benefit to be achieved from
adopting a particular pollution control technology is
not an element of that technology's cost," and found
that such benefits were not a required part of the
BAT determination. Given this fact, the court
observed that even serious flaws in the study would
not have provided "grounds for remanding the zero
discharge limit."
Cook Inlet petitioners asserted that in setting the
zero discharge limit on produced sand, EPA
improperly refused to consider a "no free oil"
alternative based on a sand washing treatment
technology. The court dismissed this argument
based on the fact that every coastal facility
surveyed except one was practicing zero discharge
at the time of the rulemaking, and the Agency had
considered sand washing and concluded that it was
not always effective in eliminating pollutants from
produced sand.
Alaska petitioners argued that EPA violated the
CWA when the Agency established different limits
for Coastal facilities outside Alaska than for those in
Cook Inlet without establishing Cook Inlet as a
separate subcategory. The court, however, found
that EPA had engaged in a permissible construction
of the CWA because the Agency had appropriately
balanced the need for nationally uniform standards
with the need for some flexibility to address one
group of point sources within a long-established
category that were "dramatically different from all
other point sources within that subcategory.
(Chem. Mfrs. Ass'n v. Natural Resources Defense
Council, 470 U.S. 116 (1984)). The court found it
significant that EPA had concluded that due to
geography and the circumstances of Cook Inlet, the
cost of complying with zero discharge would have
been "substantially higher for Cook Inlet facilities."
Ultimately, the court found that, based on these
facts, EPA had sufficient plenary rulemaking
authority to set different effluent limits for these
facilities.
Finally, the court found the challenge to the Region
6 general permit was moot, since even if the permit
was remanded the final result would be governed
by the final ELGs and, thus, the same zero
discharge standard would be imposed.
2. Tenth Circuit holds that plaintiff
cannot use CWA citizen suit
provisions to challenge a NPDES
permit that does not address the
discharge of pollutants to
groundwaterwhere EPA determined
during permit renewal that the
permittee did not need a permit for
groundwater seepage:
Notice: Rules of the Tenth Circuit Court of Appeals
may limit citation to unpublished opinions. Please
refer to the rule of the U.S. Court of Appeals for this
Circuit (10th dr. R. 36.3).
Amigos Bravos v. Molvcorp, 1998 U.S. App. Lexis
28567(1 Oth Cir. 1998).
Plaintiffs, two non-profit corporations whose
members are interested in protecting New Mexico's
water resources, brought a citizen suit against
defendant Molycorp, who operated a molybdenum
10
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Issue 16
Water Enforcement Division
September 1999
mine that discharged pollutants pursuant to a
NPDES permit into the Red River, alleging that
pollutants were being leached from waste rock piles
at defendant's mine and discharged into the Red
River through groundwater flow, seeps, and
springs, and that these discharges were not
authorized under defendant's NPDES permit. The
district court had previously dismissed plaintiff's
claims for lack of subject matter jurisdiction, finding
that such claims should have been brought before
the court of appeals in connection with defendant's
permit renewal in 1993.
On appeal, plaintiffs argued that EPA did not follow
the procedures necessary to include the discharges
from the waste rock piles to groundwater in the final
permit, EPA's response to comments regarding
groundwater issues pertained to issues other than
the alleged discharges from the waste rock piles,
EPA did not take any "action" regarding waste rock
pile discharges to groundwater because EPA's
response neither issued, denied, nor required an
NPDES permit for these discharges, and EPA's
response to comments on discharges to
groundwater did not reflect EPA's position on
groundwater discharges that are hydrologically
connected to surface waters. The court of
appeals rejected these arguments and affirmed
the decision of the district court. The court
agreed that plaintiffs should have pursued their
present claims during the permit renewal
process. The court stated that plaintiff's claims
were not viable because several opportunities
existed for plaintiffs to challenge EPA's decision
through administrative and judicial review. The
court noted that plaintiffs could have requested that
the Regional Administrator grant an evidentiary
hearing to reconsider or contest the decision, and
could have petitioned the U.S. Court of Appeals for
review of that decision. With regard to the plaintiff's
arguments that EPA focused on groundwater
issues other than discharges from the waste rock
piles and, therefore, did not consider the discharges
at issue, the court found that the issue of waste
rock drainage was raised in the public comments
and that EPA addressed this concern by stating that
it understood the concern for possible impact of
seepage to the Red River, but that groundwater
seepage was not considered a "point source" under
the NPDES permitting program but is regulated by
the State through the New Mexico Environmental
Department.
3. District court holds that a NPDES
storm water permit is not required
for the construction of farming
access roads, and that construction
activities that disturb less than five
acres and are not part of a larger
common plan of development, are
not subject to NPDES permit
requirements:
Mamo v. Galiher, 28 F. Supp. 2d 1258 (Dist. Ct.
Haw., Nov. 25, 1998).
Plaintiff Na Mamo O 'Aha' Ino brought an action
under the CWA that alleged that various
construction activities on defendants' property
triggered the need for a NPDES stormwater permit
and that defendants failed to obtain a dredge and
fill permit prior to filling a portion of an adjacent
wetland and stream. The construction activities
alleged included building a helipad and utility barn,
creating terraces, erecting water tanks for irrigation,
storing road building materials, filling wetlands,
clearing a turnaround area, and constructing, using
and maintaining access roads. Defendants argued
that their activities were not subject to permit
requirements.
The court reviewed the definitions of construction
under 40 CFR 122.26(b)(14)(x) and 33 U.S.C.
1362(14), and the permit exclusions under 40 CFR
122.3(e) for non-point source agricultural and
silvicultural activities. The court then determined
whether each of defendants' activities constituted
"construction activities" or "non-point source
discharges and/or development of land for
agriculture."
With regard to defendants construction of
access roads, the court held that no permit was
required. The court found that the farming
11
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September 1999
roads at issue were analogous to logging roads,
which have been held by the Ninth Circuit to be
excluded from NPDES permit requirements. The
court also found that both principles of statutory
construction and the legislative history of the CWA
supported this conclusion.
As for the defendants' other construction activities,
the court considered whether these activities fell
within the exception for activities that disturb less
than 5 acres and which are not part of a larger
common plan of development. (40 C.F.R. §
122.26(b)((14)(x)). The court calculated the area
disturbed by the building of the helipad, utility barn,
terrace construction, water tank installation, clearing
for a turn around area, stockpiles of road building
material, and filling of wetlands, and found the
disturbance to be 1.61 acres, less than the five
acres needed to trigger a NPDES permit. With
regard to the existence of a common plan of
development, the court observed that such a
plan is broadly defined by EPA as an
announcement or piece of documentation or
physical demarcation indicating construction
activities may occur on a specific plot. The
court observed that a plan is also defined as a
contiguous area where multiple separate and
distinct construction activities may be taking place
at different times on different schedules under one
plan. The court did not consider the construction,
use, and maintenance of the access roads a
"construction activity" and thus did not consider
them in this determination. In addition, the court
found that a plan submitted to the County of
Maui and a cooperative agreement with the
local soil and water conservation district, filed
two and a half years apart, were insufficient to
establish a common plan of development. The
court asserted that plaintiff confused development
with construction as a large part of defendants' plan
discussed planting trees and raising animals. The
court concluded that defendant's activities were not
undertaken pursuant to a "larger common plan of
development."
The court denied plaintiff's motion for partial
summary judgment and granted in part defendant's
motion for summary judgment, holding that
defendants were not required to secure NPDES
permits for their activities. Because a genuine
issue of material fact existed as to whether
defendants placed fill material into the adjacent
stream, defendant's motion for summary judgment
on this issue was denied.
E. Section 404/Wetlands
1. Court of Appeals for the Federal
District holds that denial of Section
404 permit for the dredge and fill of
underwater lake-bottom property did
not constitute a compensable
government taking:
Forest Properties, Inc. v. United States, 177 F.3d
1360 (May 18, 1999).
This case stemmed from the planned development
of two properties, one upland tract and a 9.4 acre
piece of contiguous lake-bottom property that
constituted wetlands. Plans called for the fill of the
lake-bottom land property to create peninsulas on
which homes would be built. In 1988, Forest
Properties, Inc., acquired title to the upland property
and entered into a contract for the purchase of the
lake-bottom property. Forest also took over a
previously filed Section 404 permit application that
requested authorization to dredge and fill the lake-
bottom property. In 1989, the U.S. Army Corps of
Engineers (USAGE) informed Forest that if it were
to make a final decision on the permit application at
that time, the recommendation would to deny the
permit because the project did not meet the criteria
established at 40 CFR § 230.10(a)(3). Despite the
fact that Forest modified his plans and had secured
necessary State permits, in 1992 the USACOE
denied the Section 404 permit application. In
response, Forest revised its development plan to
eliminate the lake-bottom property and proceeded
with the development of the upland area, creating
106 lots with a market price of about $12 million, at
a cost of $7.1 million.
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Forest did not seek administrative or judicial review
of the USAGE action, but did file a takings action in
the Court of Federal Claims, which held that no
taking had occurred. On appeal, the Court of
Appeals affirmed the decision. The court framed its
analysis by outlining relevant Federal takings law,
citing Loveladies Harbor, Inc. v. United States, 28
F.3d 1171 (Fed. Cir. 1994), stating that a
determination on whether the government's denial
of the permit constituted a taking of Forest's real
property for which the Fifth Amendment mandated
payment of just compensation involved three
inquires: 1) whether the taking alleged was
physical or regulatory; 2) if the alleged taking was
regulatory, what was the relevant parcel for
determining the economic impact of the regulation;
and 3) did the regulatory action actually constitute
a taking. The Court of Appeals held that the permit
denial should be considered an alleged regulatory
taking, as there was neither a physical taking or
invasion of the lake-bottom land, with the impact of
the USACOE action simply being that Forest was
not able to make a particular use of the property.
Regarding the issue of the "relevant parcel" for the
takings analysis, the Court of Appeals concurred
with the decision of lower court that the relevant
parcel was the entire 62 acre project, not, as Forest
claimed, the 9.4 acres of submerged lands. Key to
the court was the fact that from the outset of the
project, the two parcels were treated as
components of a single integrated project and that
Forest's economic intentions were to utilize the
upland parcel in conjunction with the lake-bottom
land as one income producing unit.
On the issue of whether the USAGE'S denial of the
permit was a regulatory taking of the 62 acre
parcel, the court, citing Penn Central Transp. Co. v.
New York City. 438 U.S. 104, 57 L.Ed. 2d 631, 98
S.Ct. 2646 (1978), stated the following relevant
factors to determine whether a government
regulation constitutes a regulatory taking: 1) the
economic impact of the regulation on the claimant;
2) the extent to which the regulation has interfered
with distinct investment-backed expectations; and
3) the character of the governmental action.
Applying this criteria, the Court of Appeals upheld
the lower court's decision, finding that any
diminution in the value of Forest's property related
to the permit denial was not substantial enough to
protect as a taking. First, the court found that the
character of the action did not have an impact in
this case, as the dredging and filling of the
submerged area would not constitute a nuisance
under State law. Second, the court stated that the
denial had not significantly interfered with Forest's
reasonable investment backed expectations, largely
basing its finding on the fact that at the time Forest
purchased the property, it had knowledge of the
existing regulatory requirements and knew three
years before permit denial that the USACOE
planned to deny the permit application. Finally, the
court stated that Forest failed to introduce
convincing evidence to show the amount, if any, by
which the value of the relevant parcel, the 62 acres,
was reduced by the permit.
2. Court of Federal Claims holds that
USAGE denial of permit to fill lake
bottom for residential development
does not constitute a taking
requiring compensation under the
Fifth Amendment:
Palm Beach Isles Ass'n v. United States, 42 Fed.
Cl. 340 (Oct. 19, 1998).
Plaintiffs owned 50.7 acres of real property in Palm
Beach County, Florida that primarily existed as
submerged land below the mean high water mark.
Plaintiff's filed a complaint against the U.S. seeking
compensation in excess of $10,000,000 for an
alleged taking of property without just
compensation. Plaintiffs claimed that when the
U.S. Army Corps of Engineers (USAGE) denied a
dredge and fill permit for the property, defendant
took plaintiff's property in violation of the Fifth
Amendment.
In 1958, the plaintiffs purchased a 311.7 acre
parcel of property that included the 50.7 acres at
issue for $380,190. In 1968, plaintiffs sold a 261
acre upland oceanfront portion of the parcel for
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approximately $1 million but retained ownership of
50.7 acres, consisting of 49.3 acres of lake bottom
that is below the mean high water mark, and
1.4 acres of adjoining shoreline of red mangrove/
saltmarsh cordgrass wetlands that is above the
mean high water mark.
On May 31,1989, plaintiffs filed a permit application
with the USAGE pursuant to the Rivers and Harbors
Act § 10 and the CWA § 404. The application
sought permission to fill the 49.3 acres of lake
bottom and 1.4 acres of adjoining shoreline for the
purpose of constructing a residential development.
The USAGE denied the permit application as being
contrary to the 404(b)(1) guidelines and contrary to
the public interest. USAGE concluded the project
would have resulted in the elimination of 50.7 acres
of important Lake Worth shallow water habitat. The
parties filed cross-motions for summary judgment
on plaintiffs claim that the USAGE actions
constituted a taking in violation of the Fifth
Amendment.
The court found that plaintiffs' taking claim was not
viable in that the U.S. government's navigational
servitude rights removed from the takings inquiry
some 49.3 acres of plaintiffs' property within the
navigational servitude waters below the mean high
watermark. In addition, the claim for the remaining
1.4 acres was not found to constitute a per se
taking of land when the entire parcel of either the
311.7 acres or 50.7 acres was considered.
Moreover, the court found plaintiffs lacked a
reasonable investment-backed exception in the
value of this 1.4 acres when assessed in the
context of the entire parcel, of which 49.3 acres was
subject to the navigational servitude and 261 acres
were sold for a substantial gain. Finally, the court
observed that plaintiffs could still apply for a permit
from the USAGE and a zoning variance from state
and local authorities that would allow for water
dependent used of the 50.7 acre parcel, thereby
providing other viable development options.
Accordingly, the court denied plaintiffs' motion for
summary judgment, and granted defendant's cross-
motion for summary judgment.
3. District court dismisses suit to
enforce violation of Section 404
permit terms for lack of subject
matter jurisdiction where violation
resulted in discharge of pollutants
but not a discharge of dredge and fill
material:
United States v. United Homes, 1999 U.S. Dist.
LEXIS 2354 (N.D. II. Feb. 24, 1999).
Plaintiff United States brought suit on behalf of the
U.S. Army Corps of Engineers (USAGE) against
defendant United Homes for failing to comply with
terms of defendant's Section 404 permit, which had
been issued to fill a portion of a wetland located on
land that was being developed by defendant.
Plaintiff alleged defendant failed to develop
adequate or properly maintain the required soil and
siltation controls, and that such actions resulted in
the discharge of pollutants to waters of the U.S.
Defendant moved to dismiss the case, arguing that
the USAGE lacked jurisdiction because the
pollutants discharged were not "dredge and fill
materials," as those materials are defined in the
CWA and corresponding regulations. The court
agreed. The court observed that the USAGE
only has jurisdiction over issuing permits for
dredge and fill activities, whereas EPA has
authority to issue permit for the discharge of all
other pollutants. The court then examined
whether the pollutants discharged here
constituted dredge and fill material, and
concluded that they did not. The court found that
the "pollution complained of by the Government" did
not constitute dredge and fill material, and
reiterated that the USAGE lacked jurisdiction over
non-dredge and fill discharges. The court observed
that although the defendants may have been
violating the CWA, the violations were not within the
jurisdiction of the USAGE, the party on whose
behalf the government brought the suit. Thus, the
court granted defendant's motion to dismiss.
4. District court holds that the
purposeful relocation of materials
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within wetland does not
constitute incidental fallback, but
is more similar to sidecasting,
which is subject to Section 404 of
the CWA:
United States v. Bay-Houston Towing Co., 33 F.
Supp. 2d 596 (E.D. Mich. Jan. 14, 1999).
The United States sought injunctive relief and civil
penalties against defendant Bay-Houston Towing
Co., for discharging pollutants without a NPDES
permit (count I), discharging dredge and full
materials into wetlands without a Section 404
permit (count II), and violating an administrative
compliance order (count III). All violations were
associated with defendant's peat harvesting
activities in Sanilac County, Michigan. Defendant
sought summary judgment with regard to counts I
and II.
Defendant argued that count I was moot because
on July 24, 1998, the Michigan Department of
Environmental Quality (MDEQ) issued it a NPDES
permit that authorized the discharge of peat bog
drainage water into the Black River. The United
States argued that the injunction sought would
require defendant to reduce the number of outfalls
discharging pollutants, and to comply with other
requirements in the MDEQ-issued permit. The
court allowed review of defendant's compliance with
specified violations of the permit, which the
government was required to identify within 60 days.
With regard to count II, defendant argued that
its peat harvesting operation did not constitute
a discharge or addition of pollutants to
wetlands and, therefore, it did not fall within the
government's jurisdiction under Section 404 of
the CWA. The court disagreed. The court found
that this case did not involve incidental fallback,
since defendant's activities involved the
"purposeful relocation" of different materials in
the peat bog. Rather, the court observed that
defendant's activities were more consistent
with sidecasting, which, the court observed,
has always been subject to Section 404. The
court discussed the decision in United States v.
Wilson. 133 F.3d 251 (4th Cir. 1997), and found the
reasoning of Judge Payne to be the more
persuasive (arguing that sidecasting did constitute
the addition of a pollutant to the water, and stating
that in National Mining Assoc., v. U.S. Army Corps
of Engineers, 330 U.S. App. D.C. 329, 145 F.3d
1399 (D.C. Cir. 1998), the court did not hold that
the USAGE may not legally regulate some forms of
redeposit under its Section 404 permitting
authority). The court similarly concluded that
defendant's spreading of the sidecasted bog
material from the side of the ditch into the bog for
future harvest, and discing of the wetlands, could
constitute an addition of pollutants.
Defendant also argued that it had not discharged
pollutants because the materials were ultimately
removed from the wetland. The court found that
whether defendant's activities could have been
categorized as "discharges" when the bog material
was only temporarily displaced into other areas of
the bog before being removed raised a genuine
issue of material fact. Similarly, the court found the
question of whether the haul roads were temporary
to be a question of fact. Finally, the court found
that defendant's use of indigenous bog vegetation
and clays to create haul roads and foundations for
windrows could constitute the discharge of fill
material under the CWA. The court denied
defendant's motion for summary judgment.
5. District court denies defendant's
motion to bar $1,257,500 penalty for
wetlands violations:
United States v. Krilich. 1999 U.S. Dist. LEXIS4191
(N.D. II. Mar. 24, 1999). See case summary on
page 1.
6. District court rejects Home Builders
Association's claims that agreement
between USAGE and other federal,
state and local agencies designed to
coordinate various programs to
regulate soil erosion and sediment
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control exceeds USAGE statutory
and regulatory authority:
Home Builders Ass'n of Greater Chicago v.
USAGE, etal.. 1999 U.S. Dist. LEXIS 9453 (N.D. II,
June 15, 1999).
This case involves an action brought by the Home
Builders Association of Greater Chicago, a group of
construction companies and residential developers
doing business in the Chicago area, seeking
declaratory and injunctive relief against the USAGE.
In its action, the Association claimed that the
USAGE exceeded its authority when it entered into
an "Interagency Coordination Agreement" (ICA)
with other federal, state and local agencies, under
which the parties would coordinate their respective
regulatory actions to regulate soil erosion and
sediment control in Lake County, Illinois. Parties to
the ICA were the USAGE, the Lake County
Stormwater Management Commission (SMC), the
Lake County Soil and Water Conservation District
(SWCD) and the U.S. Department of Agriculture
Natural Resources Conservation Service (NRCS).
ICA conditions that applied to the USAGE all
involved actions to be taken in the Section 404
permitting process. The USAGE agreed to the
following: 1) wherever appropriate, when issuing a
Section 404 permit, include as a special condition
that the permittee consult with the SMC on soil
erosion and sediment control plans; 2) at the
USAGE'S discretion, require the permittee to submit
a soil erosion and sediment control plan to the SMC
for review and approval; 3) at the USAGE'S
discretion, require the permittee to schedule a
preconstruction meeting with the SMC to review
implementation of the soil erosion and sediment
control plan; 4) if the USAGE (or the SWCD or
NRCS) received a report of a soil erosion and
sediment issue on the site, it would contact SMC,
who would then take action to correct the problem
with possible USAGE assistance; and 5) request
that SMC conduct on-site inspections during the
construction phases of land development to
determine whether the site was in compliance with
approved plans and Section 404 permit
requirements.
The Association's primary complaint was that the
procedural obligations imposed on the USAGE
under the ICA unlawfully expanded the USAGE'S
narrow authority over dredge and fill erosion and
siltation controls to encompass regulation of
general site construction and siltation controls and
stormwater management plans for developed sites,
none of which fell under the USAGE'S regulatory
jurisdiction. The Association also claimed that the
ICA impermissibly expanded the other agencies
limited authority to cover Section 404 activities.
Accordingly, the Association asked that the court
declare the ICA invalid and require the USAGE to
rescind it on the ground that it exceeded the
USAGE statutory and regulatory authority and
violated the APA.
The USAGE presented three defenses: 1) that the
Association's claims were not "ripe;" 2) that the
Association did not have "standing;" and 3) that the
ICA was not a "final agency action," therefore it was
not subject to judicial review because only final
agency actions come within the limited waiver of
sovereign immunity of the APA. The district court
stated that if it decided the USAGE'S motion on the
first two grounds, it need not address the third.
Presenting a brief summary of the ripeness
doctrine, citing Abbott Laboratories v. Gardner, 397
U.S. 136, 18 L Ed. 681,875. Ct. 1507 (1967), the
district court stated that the basic rationale of the
doctrine was "to prevent the courts, through
avoidance of premature adjudication, from
entangling themselves in abstract disagreements
over administrative policies" and "to protect the
agencies from judicial interference until an
administrative decision has been formalized and its
effect felt in a concrete way by the challenging
parties." Citing Ohio Forestry Ass'n v. Sierra Club,
523 U.S. 726, 118 S. Ct. 1665, 140 L. Ed. 2d 921
(1998), in which the Supreme Court rejected on
ripeness grounds a challenge to a Forest Service
resource management plan that set logging goals,
but did not authorize the cutting of any trees, the
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district court stated that ripeness depends on "'the
fitness of the issues for judicial decision' and 'the
hardship to the parties of withholding court
consideration.'"
The Association argued that the matter was ripe
because the ICA "crystalized" the USAGE'S
position, that the USAGE intended to "federalize"
construction and that the ICA would force
Association members to modify their behavior to
avoid the procedural burdens and substantive
consequences that would result from
implementation of the ICA. The court, drawing
parallels to the Ohio Forestry case, disagreed
with the Association's assertions that the suit
was ripe, focusing on the discretionary nature
of the USAGE'S obligations and, due to the non-
mandatory language of the ICA, whether the
procedural burdens cited by the Association as
the basis for its action would ever occur.
Turning to the hardship issue, again relying on Ohio
Forestry, the district court rejected the Association's
claims of hardship, stating that the Association had
failed to prove that its members would have to
change its behavior from the outset or modify
existing activities. Accordingly, the court stated
that it was not convinced that withholding
review of the ICA would cause substantial
hardship to the Association's members, and,
therefore, it would withhold review until the suit
ripened with the USAGE'S implementation of the
ICA and exercise of its authorities.
On the standing issue, the court, citing Lujan v.
Defenders of Wildlife. 504 U.S. 555, 119 L Ed. 2d
351, 112 S. Ct. 2130 (1992), stated that that the
Association needed to establish three elements to
satisfy the constitutional elements for standing: 1)
injury in fact, i.e., invasion of a legally protected
interest which is concrete and particularized and
actual or imminent, not conjectural or speculative;
2) causation; and 3) redressability. Based on
these criteria, the district court held that the
Association did not have standing, since the
nature and imminence of the alleged injury was
too speculative. In so holding, the district court
focused on the fact that concerns regarding more
burdensome permitting procedure and additional
regulatory requirements depended on how the
USAGE actually implemented the ICA, and
although it was possible that the USAGE could take
inappropriate action, imagining such circumstances
only amounted to speculation and conjecture. The
court granted the USAGE'S motion to dismiss,
and dismissed the Association's case without
prejudice.
7. District court approves settlement
agreement regarding future
regulation and study of mountaintop
mining operations:
Bragg v. Robertson, 1999 U.S. Dist. LEXIS 9254,
48 ERG (BNA) 1913.
This action involved a proposed Settlement
Agreement to resolve claims against EPA, USAGE,
the Office of Surface Mining (OSM) and the Fish
and Wildlife Service (FWS) arising from their
alleged failure to carry out respective CWA Section
404, SMCRA and NEPA duties to regulate
mountaintop mining operations in West Virginia.
The Settlement Agreement had two main
components. First, the Federal defendants and the
West Virginia Department of Environmental
Protection (WVDEP) agreed to enter into an
agreement to prepare an Environmental Impact
Statement (EIS) on a proposal to consider
developing agency policies, guidance and
coordinated agency decision-making processes, the
"long term approach," to minimize the adverse
effects of mountaintop mining operations and
excess spoil disposal sites. Second, the
Agreement provided an "interim approach" to
regulation of mountaintop mining activities, the
focus of which was the creation of an interagency
coordination process, primarily aimed at meshing
the USACOE Section 404 permitting process with
the WVDEP's NPDES program and the State
permitting process for surface mining and
reclamation.
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The Settlement Agreement also provided that prior
to the completion of the EIS, any application for
mountaintop mining operations in West Virginia that
would result in "more than minimal adverse effects"
in waters of the U.S. would require a Section 404
permit for all overburden and fill material in waters
of the U.S. Any application for West Virginia
mountaintop mining operations that proposed to
discharge fill in waters of the U.S. draining a
watershed of 250 acres or more would be
considered to have more than a "minimal adverse
impact" and would, therefore, require an individual
Section 404 permit. Similarly, if the USAGE
determined that a discharge into waters draining a
watershed of less than 250 acres would have more
than a "minimal adverse impact," the USAGE would
require an individual Section 404 permit.
The main focus of the decision was the challenge to
the Settlement Agreement by several industry
associations representing entities involved in
surface mining and reclamation activities in West
Virginia. First, the court addressed the standing of
the Associations to bring their challenge, stating
that under Alumax Mill Prods., Inc. v. Congress Fin.
Corp.. 912 F.2d 996 (8th Cir. 1990) and
Quad/Graphics, Inc. v. Fass, 724 F.2d 1230 (7th
Cir. 1983), the Associations would have standing if
they could demonstrate that they would "suffer
formal legal prejudice" from the Settlement
Agreement, with "formal legal prejudice" occurring
when a nonsettling defendant "is stripped of a legal
claim or cause of action." The Associations claimed
"formal legal prejudice" had occurred because
companies could not challenge the agreed upon
individual, rather than Nationwide, permitting
approach because the USAGE'S decision was not
a "formal agency action." The court held that the
Associations had failed to establish formal legal
prejudice, because: 1) they had not
demonstrated that once the USAGE made a final
determination on an individual permit, an
applicant could not challenge the decision; and
2) that the companies' expectations regarding
the Section 404 permitting process based on
the USAGE previous behavior "are not rights
established by contract, statute or regulation,"
but instead, "simply expectations and
assumptions that cannot bind the Corps from
exercising its administrative discretion and
duties." Thus, the court held that, without
legally cognizable injuries, the Associations
lacked standing to challenge the terms of the
Agreement.
Addressing the Associations' claim that the
Settlement Agreement constituted an invalid
rulemaking under the Administrative Procedure
Act (APA) because the Federal Defendants did
not follow proper notice and comment
procedures in its adoption, the court held that
formal APA requirements did not apply because
the Settlement Agreement contained only
"interpretive," not "substantive," rules.
Regarding the "long term resolution" of the
permitting issue through the NEPA process, the
court held that the Settlement Agreement did not
constitute a substantive rule, but rather a general
statement of policy. In regard to the "interim
approach" to permitting, the court held that the
provisions were clearly within the ambit of
interpretive rules, focusing on the fact that the
Settlement Agreement simply better defined an
existing process, the discretionary nature of many
of the USAGE'S determinations, the fact that the
procedures were recognized as "interim," and that
the provisions regarding inter-agency coordination
were simply agreements as to the process the
agencies would use, without binding the agencies'
discretion.
Turning to the Associations' final arguments,
regarding the contention that the Settlement
Agreement violated NEPA because it provided for
the retention of consultants mutually acceptable to
the agencies and the plaintiffs, the court found no
violation, stating that nothing in the Settlement
Agreement stated or implied that anyone other than
the agencies would be preparing the EIS or
suggested that should the agencies determine to
hire a contractor, anyone other than the agencies
would perform the selection process or that anyone
otherthan an unbiased contractorwould be chosen.
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The court also rejected the Associations argument
that the Settlement Agreement was invalid because
it violated the equal protection component of the
Fifth Amendment's Due Process clause and the
Equal Protection clause of the Fourteenth
Amendment by applying to surface mining
operations in West Virginia, but not other States,
and that the Federal Defendants had "no rational
basis" for treating surface mining operations in
West Virginia differently, thus not satisfying the
constitutional criteria for taking such action. The
district court held that the Associations failed to
meet the burden of proving that the Federal
Defendants had "no rational basis related to a
legitimate government interest to support their
decision," the standard of review in this type of
case. The court noted that the prevalence of the
regulated activity in West Virginia fully justified the
action. Finally, the court rejected the Associations'
argument that the Settlement Agreement
constituted an impermissible delegation of
executive authority because the Federal
Defendants had agreed to allow the plaintiffs to
participate in the EIS development process, the
right to comment on individual permits and the right
to participate in a dispute resolution process, stating
that it was permissible to allow the Plaintiffs to be
involved in the EIS contractor selection process,
that the Settlement Agreement simply recognized
the rights of the general public to be involved in the
permitting process under existing regulations, and
that the Associations had offered no justification on
why the dispute resolution process was
impermissible.
8. District court dismisses challenge to
USAGE CWA Section 404 jurisdiction
over wetlands adjacent to navigable
waters:
United States v. Hartz Construction Co., Inc., 1999
U.S. Dist. LEXIS 9126 (N.D. II. June 14, 1999).
See case summary on page 3.
9. District court holds that the
continuing presence of a
reconstructed fishpond wall without
any current governing permit does
not violate the CWA since the
original placement was conducted
pursuant to proper authorization
under a nationwide permit:
Harold Wright v. Lance Dunbar et al., Civ. No. 97-
00137 HG (Hawaii, April 27, 1999).
Plaintiff brought numerous claims against
defendants concerning erosion and pollution
damage to plaintiff's seaside property allegedly
caused by defendant's restoration of an ancient
Hawaiian fishpond wall, and defendant's
participation in a stream cleaning and dredging
project. Count II constituted a CWA citizen suit
claim that sought an injunction for removal of the
pond, civil penalties, costs, and attorney's fees.
Defendant Dunbar argued that the court lacked
jurisdiction because plaintiff failed to provide the
proper notification of the violation to the defendant,
and plaintiff failed to allege any ongoing violation.
The court found that plaintiff had properly served
notice on defendant Dunbar, and that such notice
contained sufficient information to satisfy the
requirements of 40 C.F.R. § 135.3(a). Defendant
Dunbar also asserted that there were no continuing
violations of the CWA at the time plaintiff filed the
complaint (2/6/97) because construction of the
fishpond wall had been completed several years
prior. Plaintiff made three arguments in response.
First, plaintiff argued that Dunbar had failed to
obtain a § 401 water quality certification prior to
applying for authorization for the fishpond project
under a USAGE DA nationwide permit 3, and this
resulted in a continuing violation. The court
disagreed. The court found that because the
USAGE had applied for State § 401 certification of
the relevant nationwide permit in 1989 and the
State of Hawaii had waived the certification
requirement by failing to respond to the USAGE'S
request, the nationwide permit was valid in Hawaii
and individuals covered under that permit were
covered under the USAGE'S certification and did
not need to obtain an individual certification.
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Second, plaintiff asserted that construction of the
fish pond had not complied with the terms of the
USAGE nationwide permit. Again, the court
disagreed. The court found that, although the
USAGE eventually revoked Dunbar's authorization
to restore the fishpond under the nationwide permit,
all worked conducted on the fishpond during the
period covered by the complaint had been
conducted in conformance with the permit.
Finally, plaintiff argued that the ponds presence
without a valid authorized permit constituted a
continuing violation because the fishpond wall was
a conduit from which silt was intermittently
discharged. The court considered whether the
failure to obtain an individual water quality
certificate for the fishpond wall after the USAGE
revoked coverage under the nationwide permit
constituted a continuing violation, as well as
whether the intermittent discharge from the wall of
silt into the ocean constituted an unpermitted
discharge. On the first issue, the court found that
because reconstruction of the wall was covered by
the nationwide permit when it occurred, the
continued presence of the reconstructed wall
without any "current governing permit" did not
violate the CWA, "as the original placement was
done pursuant to proper... authorization under the
nationwide permit." On the second issue, the court
found that plaintiff had not substantiated his claim
that the fishpond wall continued to discharge
sediment and cause turbidity. The court thus
concluded the no material issue of fact existed on
this issue. The court held that defendant was
entitled to summary judgment with respect to
plaintiff's CWA claims.
F. Citizen Suits
1. Standing
a. Fourth Circuit holds that two non-
profit environmental organizations
lacked standing because they failed
to establish injury in fact and failed
to establish that the alleged injuries
in fact were fairly traceable to
defendant's conduct:
Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp.. 179 F.3d 107;(4th Cir. 1999).
Plaintiffs brought a citizen suit under the CWA
against defendant Gaston Copper Recycling
Corporation alleging various violations of its N PDES
permit. The district court dismissed the citizen's
suit for lack of subject matter jurisdiction concluding
that plaintiffs lacked standing. On appeal, plaintiffs
contended that they established that their members
suffered injuries in fact that were fairly traceable to
defendant's conduct. The Fourth Circuit Court of
Appeals reviewed the case de novo.
In regard to plaintiffs' claim of injury in fact, the
court concluded that the concerns of plaintiffs'
members were based on mere speculation as to the
presence of pollution without any evidence to
support their fears or establish the presence of
pollutants in the allegedly affected waters. There
were no toxicity tests, or tests or studies of any
kind, performed on the allegedly affected waters.
None of plaintiffs' members testified that there was
an observable negative impact on the waters that
they used or the surrounding ecosystems of such
water. While recognizing that recreational and
economic interests of plaintiff members are
legally protected interests, the court concluded
that the member's concerns, standing alone,
simply failed to establish that their legally
protected interest were actually, or imminently
threatened of being adversely affected.
The court proceeded assuming arguendo that
plaintiffs established that their members suffered
injuries in fact and reviewed plaintiff's claim that the
alleged injuries in fact were fairly traceable to
defendant's conduct. The court concluded that
plaintiffs did not present evidence that the
allegedly affected waterways contained
effluents of the type that defendant discharged
and that the distances between the source of
the alleged pollution and the waterways used by
plaintiffs' members was simply too great to
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infer causation. As such, the court concluded
that plaintiffs had failed to establish that the
injuries were fairly traceable to defendant's
conduct.
The court therefore concluded that plaintiffs lacked
standing and affirmed the district court's judgment
dismissing plaintiffs' action for lack of jurisdiction.
In a dissent, Chief Judge Wilkinson opined that the
majority had encroached on congressional authority
by establishing standing hurdles so high as to
effectively remove the citizen suit provision from the
Clean Water Act. The dissent would reverse the
judgment and remand for a determination of
whether defendant has discharged pollutants in
excess of its permit limits.
b. District court holds that civil
penalties sought for ongoing
violations of the CWA specifically
deter such violations sufficient to
satisfy the redressibility
requirement for purposes of
establishing standing:
Natural Resources Defense Council v. Southwest
Marine, 39 F. Supp. 24 1235 (S.D. Cal. Jan. 27,
1999).
Defendant Southwest Marine sought
reconsideration of an order that denied defendant's
prior motion to preclude imposition of civil penalties
for violations of the CWA. Defendant argued that
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83
(1998) dictated that citizen suit plaintiffs never have
standing to seek penalties for violations of an
environmental statute if those penalties are paid to
the U.S Treasury. The court disagreed. The court
distinguished Steel Co., from the instant case
based on the fact that Steel Co., dealt with wholly
past violations, whereas, the instant case involved
ongoing violations. The court observed that the
possible imposition of monetary penalties in this
case could specifically deter current and ongoing
violations. Based on this finding, the court
concluded that "civil penalties awarded to the
U.S Treasury may remedy the Plaintiff's
injuries" and thus were sufficient to satisfy the
redressibility requirement of current standing
law.
The court also rejected defendant's argument that
plaintiffs must not only have standing to bring their
case but must have standing to seek each
particular remedy. (Citing the City of Los Angeles
v. Lyons, 461 U.S. 95 (1983)). The court observed
that in effect defendant was arguing that
irrespective of ongoing violations a citizen suit
plaintiff could never seek civil penalties. The court
rejected this argument as well, holding that "Lyons
and its progeny are not applicable" because those
cases typically involved requests for injunctive relief
to remedy allegations of harm from officials or
quasi-official conduct, and in such cases the
interests in standing had to be weighed against the
government's interest in being able to conduct its
affairs. The court found no analogous concern
here.
2. Enforcement Under Comparable Law
as Bar to Citizen Suit
a. Sixth Circuit holds that series of
four administrative enforcement
orders constituted diligent
prosecution under a comparable
State law sufficient to bar citizen
suit:
Jones v. City of Lakeland, 175 F.4d 410 (6th Cir.
April 20, 1999).
Plaintiffs brought a citizen suit under the CWA
against defendant City of Lakeland alleging the City
discharged pollution from its stabilization lagoon
into State waters in violation of its NPDES permits.
The district court, having found that the Tennessee
Department of Environmental Conservation (TDEC)
was diligently prosecuting a civil action against the
City, had dismissed the action for lack of subject
matter jurisdiction. The TDEC had issued four
administrative orders in an attempt to require the
City to come into compliance. On appeal, the Sixth
21
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Circuit Court of Appeals reviewed whether either
bar to citizen suits contained in CWA § 1365(b) or
1319(g)(6)(A) applied.
The court first examined whether the TDEC's action
constituted diligent prosecution, and concluded that
it did because the TDEC had made repeated efforts
to require compliance, and such efforts resulted in
progress towards such compliance, even though
practical difficulties encountered by the City
resulted in continued noncompliance. The court
observed that the TDEC had imposed a fine in its
fourth order and that this order provided for further
fines if the City failed to comply with the
requirements of the order. The court then
examined whether the administrative orders issued
by TDEC constituted an "action in a federal or state
court." The court concluded that administrative
proceedings of the State's water quality control
board or TDEC that sought to enforce the
Tennessee Water Quality Control Act (TWQCA) did
not constitute actions taken in court for purposes of
CWA § 1365(b). Thus, the court concluded the
district court had improperly concluded that §
1365(b) barred plaintiffs suit.
The court then examined whether § 1319(g)(6)(A)
barred plaintiff's action. Since the court had already
found that the TDEC's actions constituted diligent
prosecution, the court focused on whether the
requirements of TWQCA were comparable to those
in § 1319(g). The court concluded that the State
law provisions were comparable to the CWA
requirements. The court found that the State law
contained similar enforcement goals to the CWA,
comparable penalty provisions, and provided a
meaningful opportunity for public participation.
In a dissent, Judge Krupansky found that the CWA
and the TWQCA were not comparable, and that the
record did not establish that the TDEC had
diligently prosecuted an enforcement action under
the TWQCA.
b. Ninth Circuit holds that a CWA
citizens' suit, for violations that
continued beyond the timeframe
specified in a State enforcement
action, is not barred by such
enforcement action where no
penalty was imposed under the
State action and environmental
enhancement projects imposed
under the State action did not
address the continuing
violations:
Northern California River Watch v. Sonoma County
Water Agency, 1998 U.S. Dist. Lexis 19921 (9th
Cir., Dec. 17, 1998).
Plaintiff Northern California River Watch brought a
citizen's suit that claimed defendants violated the
CWA (33 U.S.C. § 1251) by failing to comply with
their NPDES permit as a result of allowing certain
discharges of pollutants into their wastewater
collection, treatment, and disposal system. Plaintiff
sought civil penalties as well as declaratory and
injunctive relief. Defendants claimed that plaintiff's
claims should be barred under CWA § 1319
because the State of California (through its
Regional Water Quality Control Board), on
November 14, 1997, had brought an administrative
enforcement action against defendants for the
same violations addressed under the citizen's suit.
The State enforcement action had resulted in an
$8,000 fine and an agreement for the defendants to
perform two environmental enhancement projects.
By its terms, the consent agreement covered
violations that had occurred from January 1994
through July 1997.
Plaintiff argued that its claims were not barred by
the State enforcement action because the State
action only addressed violations that occurred
through July 1977, whereas, plaintiff's claim
addressed violations that occurred since that date.
Defendants responded that, despite the fact that
the State enforcement action was limited by its
terms to violations that occurred up to July 1977,
and the fact that the State action had resulted in a
penalty and agreement to perform two
environmental enhancement projects, the State
enforcement action was an ongoing proceeding at
22
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Water Enforcement Division
September 1999
the time plaintiffs filed their complaint and it
therefore barred plaintiff's citizen suit. In effect,
defendant argued that because the State had
continued to monitor defendant's compliance and
was considering further action, the State's action
constituted "diligent prosecution" under the CWA.
The court disagreed with defendant's
arguments and held that plaintiffs claims for
those violations that occurred after July 1997
were not barred by the State's continued
monitoring of the defendant's compliance
status. The court observed that for a citizen
suit to be barred the comparable state law must
"contain penalty provisions and a penalty must
actually have been assessed under state law."
(See, Knee Deep Cattle Co. v. Bindana Investment
Co. 94 F.3d 514 (9th Cir. 1996).) The court
recognized that, with respect to the post-July 1997
violations, no penalty had been assessed by the
State.
The court also rejected defendant's argument that
citizen suit enforcement should have been barred
because part of the State settlement required
defendants to perform environmental enhancement
projects (i.e., creating a fish passage and funding
agricultural stormwater runoff monitoring). The
court added that because none of the terms of the
State administrative enforcement agreement,
including those requirements that imposed the
environmental enhancement projects, addressed
the ongoing violations asserted in plaintiffs suit, the
State enforcement action could not be considered
diligent prosecution of the violations that continued
beyond July 1997.
c. District court holds that the
prosecution of a State enforce-
ment action that addresses the
same claims as a citizen suit does
not bar the citizen suit where the
State action is filed after the
citizen suit has been filed:
Long Island Soundkeeper Fund, Inc. v. New York
City Dep't of Envtl. Protection, 27 F. Supp. 2d 380
(E.D.N.Y., Nov. 23, 1998).
Plaintiff brought an action under the citizen suit
provisions of the CWA that alleged the New York
City Department of Environmental Protection (DEP)
violated conditions (i.e., fecal coliform, nitrogen,
settleable solids, biological oxygen) of discharge
permits issued by the New York State Department
of Environmental Conservation (DEC) at eight
sewage treatment plants that discharged into the
East River and Jamaica Bay. Defendants moved to
dismiss or stay the proceeding based on a State
enforcement action that addressed the same
violations but was filed approximately 30 minutes
after the citizen suit. After providing 60 days notice
of their intent to file the citizen suit, plaintiff had
twice agreed with DEC to delay filing the suit
pending discussions between plaintiffs, defendants,
and DEC. Plaintiffs declined a third request by
DEC to delay filing the citizen suit.
Defendants argued that the DEC was diligently
prosecuting an enforcement action in State court
that addressed the same violations brought by the
plaintiff, and that pursuant to § 1365(b)(1)(B) of the
CWA, plaintiff's citizen suit must therefore be
dismissed. The court disagreed and found that
given that the DEC action was filed in state
court after the citizen suit had been filed, it was
not barred under § 1365(b)(1)(B). The court
observed that the language of the CWA bars
citizen suits only where diligent State
prosecution is initiated prior to a citizen suit.
Here, the court observed, the DEC had the
opportunity to file its action prior to plaintiff's claim
but did not do so. The court held that "state
prosecution of the same claims no matter how
diligent, will not preclude a properly filed private
action, or require its dismissal." Defendants cited
two cases in which citizen suits were dismissed
even though they were filed before State
enforcement actions. Atlantic States Legal
Foundation v. Eastman Kodak Co., 933 F.2d 124
(2nd Cir. 1991) and United States Environmental
Protection Agency v. City of Green Forest, 921 F.2d
23
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Issue 16
Water Enforcement Division
September 1999
1394 (8th Cir. 1991). The court, however,
distinguished these cases since they involved
dismissal based on settlement of the issues (with
no likelihood of continuing violations), not on
diligent prosecution.
Defendant's also argued the court should refrain
from exercising jurisdiction over plaintiff's citizen
suit under the doctrine of abstention. (See,
Colorado River Water Conservation District v.
United States, 424 U.S. 800 (1976). The court
declined, finding that the citizen suit was authorized
under federal law and enforced federal
requirements designed to protect water quality.
Moreover, the court stated that defendant's position
was "undermined by its own inaction."
Finally, defendants contended that plaintiff's claim
that the Jamaica sewage plant violated its permit
limits for settleable solids could not be enforced
because the settleable solids limit was imposed
under state law and was stricter than federal
requirements. (See, Atlantic States Legal
Foundation v. Kodak Co., 12 F.3d 353 (2nd Cir.
1993). The court agreed, and found that under
Atlantic States plaintiff's lacked standing to bring
this claim.
d. District court holds that CWA
citizen suit not precluded by State
Notice of Violation and Cease and
Desist Order issued prior to filing
of action, despite the fact that
State took further administrative
action with a penalty assessed
and collected after the suit was
filed:
Old Timer, Inc. v. Black-Hawk Central Sanitation
District, etal., 1999 U.S. Dist. Lexis 9366.
Plaintiff The Old Timer, Inc. was a riverside facility
in Colorado at which tourists panned for gold.
Plaintiff Grisenti was the owner of The Old Timer.
Defendant Black-Hawk Central Sanitation District
operated a sewage treatment plant that discharged
its wastewater to the river seven miles upstream to
The Old Timer. Other defendants included past
operators of the plant and the operator at the time
of the suit.
After several months of NPDES noncompliance by
the County, on September 8, 1992, the Colorado
Water Quality Control Division (WQCD) of the
Colorado Department of Health (CDH) issued a
Notice of Violation and Cease and Desist Order for
July and August 1992 violations. On September
22, 1992, The Old Timer gave the District notice
that it intended to file a CWA citizen suit. The Old
Timer filed the CWA citizen suit on January 29,
1993. To bring itself into compliance, the District
devised a plan that included immediate actions,
interim improvements and a large-scale expansion.
Despite these attempts, discharge violations
continued. The following federal and state
enforcement actions ensued: 1) EPA issued a
Notice of Violation on August 26, 1993; 2) the
WQCD issued a second Notice of Violation and
Cease and Desist Order on October 20, 1993, for
violations that occurred between August 1, 1992,
and September 30, 1993; 3) the WQCD issued a
"Public Notice of Intended Penalty" on October 20,
1993, giving notice of its proposed negotiated civil
penalty of $85,000 against the District; 4) the CDH
approved the agreement and issued an order
imposing the $85,000 penalty on September 19,
1995.
Based on the above facts, the District argued that
The Old Timer's CWA suit was barred either under
Section 309(g)(6)(A)(ii), which precludes citizens
suits for violations for which "the State has
commenced and is diligently prosecuting an action
under a State law comparable to [the CWA
administrative penalty subsection], or under Section
309(g)(6)(A)(iii), which precludes suits for violations
"for which the ... State has issued a final order not
subject to judicial review and the violator has paid
a penalty assessed under ... such comparable
State law." Based on its analysis of the statutory
language, CWA legislative history and relevant
case law, the district court concluded that neither of
the Section 309 provisions precluded The Old
Timer's action.
24
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Water Enforcement Division
September 1999
The court noted that before The Old Timer
commenced its suit, the only action initiated by the
WQCD was the issuance of the Notice of Violation
and Cease and Desist Order, which did not include
any assessment of penalties. Noting a split in case
law regarding whether this type of action was
sufficient to preclude a citizen suit under Section
309(g)(6)(A)(ii), relying heavily on legislative history,
the court concluded that it was Congress's
intention to preclude citizen suits only when
EPA or a State had already commenced an
"administrative penalty action" against an
alleged violator. Accordingly, it held that The
Old Timer's action was not barred by the pre-
suit Notice of Violation and Cease and Desist
Order issued by the WQCD.
The district court then addressed the issue of
whether the 1995 CDH order assessing the
$85,000 penalty against the District "retroactively"
barred the suit under Section 309(g)(6). Again
looking to CWA legislative history, the court
held that the State's later assessment of an
administrative penalty and the District's
payment thereof did not defeat the court's
jurisdiction. Reiving on Long Island Soundkeeper
Fund, Inc. v. New York City Dep't of Envtl.
Protection. 27 F. Supp. 2d 380 (E.D.N.Y. 1998) and
Natural Resources Defense Council, Inc. v.
Lowengart & Co., 776 F. Supp. 996 (M.D. Pa.
1991), the court stated that the provisions of
Sections 309(g)(6)(A) and 505 only prevent a
citizen from "commencing" an action, and once an
action has been properly filed, the court has
jurisdiction, notwithstanding a State's subsequent
assessment of an administrative penalty
Turning to the District's claims that its subsequent
improvements to the treatment plant rendered The
Old Timer's citizen suit "moot" by bringing the
District into compliance, the district court split its
analysis for the claim for injunctive relief and the
claim for civil penalties. Regarding The Old Timer's
claim for injunctive relief, the court stated that under
Gwaltney of Smithfield, Ltd v. Chesapeake Bay
Found.. Inc.. 484 U.S. 60 L Ed. 2d 306, 108 S. Ct.
376 (1987), a claim for injunctive relief becomes
moot when there is no reasonable expectation that
the polluter will continue to pollute in the future.
The court concluded that the District's plant
upgrades had corrected the problem causing the
violations that were the subject of the action and
that permanent improvements made it unlikely that
the discharge violations at issue would continue.
Thus, the court found the request for injunctive
relief to be moot. The court, however, held that
the fixed District's post complaint compliance
did not moot The Old Timer's claim for civil
penalties, stating that the overwhelming
number of circuits considering this issue have
held that a defendant's actions after citizen suit
filing that result in compliance, with no threat of
repeat violations, while mooting the claim for
injunctive relief, do not do the same for civil
penalty claims.
Addressing which of The Old Timer's penalty claims
could proceed, the court stated that although it had
concluded that the civil penalty action was not
precluded either under Section 309(g)(6)(A) or the
mootness doctrine, The Old Timer's claims relating
to violations that were specifically covered by the
CDH's final penalty order (i.e., those occurring
between July 1992 and May 16, 1994) were barred
under the principle of res judicata. Although it
determined that The Old Timer could pursue its
penalty claims, the district court stated although it
was seeking penalties for violations that occurred
before and after July 1992 and May 16,1994, many
of these violations were not included in the notice of
intent to sue, which had incorporated by reference
the WQCD's initial Notice of Violation and Cease
and Desist Order to identify violations. Because the
notice did not identify any pre-July 1992 violations,
and there was no evidence that such episodic
violations were related to the discharges identified
in the notice, the district court held that The Old
Timer could not seek civil penalties for any of the
pre-July 1992 violations. Regarding violations after
May 16, 1994, the district court held that these
violations were still actionable if they were related to
the violations covered in the Notice of Violation and
Cease and Desist Order.
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Water Enforcement Division
September 1999
Turning to the final issues, regarding the liability of
past and current plant operators, the court stated
that because The Old Timer did not serve any of
the current operators of the plant with the required
Section 505 notice, the operators were not proper
defendants, and because under Gwaltney citizen
suits cannot be brought for wholly past violations,
the operators of the plant prior to the date The Old
Timer filed its suit were also not proper defendants,
as their alleged violations had occurred wholly in
the past (i.e., before the suit). Regarding The Old
Timer's request for attorney fees, citing Beard v.
Teska. 31 F.3d 942 (10th Cir. 1994), the court
stated that for The Old Timer to be entitled to such
fees, it must show that its citizen action was a
substantial factor leading to the relief obtained, and
that defendant's actions were required by law. The
court determined that the question of whether The
Old Timer's action was a substantial factor bringing
about the District's compliance action was a factual
question that could not be decided by summary
judgment.
The court referred the case back for a
determination on attorney fees, along with a
determination on both liability issues for
violations after May 16, 1994 and imposition of
appropriate penalties, and a determination on
the liability of the District on The Old Timer's
state law claims.
e. District court grants summary
judgment motion of citizen suit
plaintiff regarding CWA liability of
defendant wastewater treatment
plant based on finding that
defendant had discharged heat
exceeding upstream temperature
of receiving waters, despite the
fact that defendant's NPDES
permit did not include any
limitation for heat:
Piney Run Preservation Ass'n v. County Comm'rs
of Carroll County, 50 F. Supp. 2d 443 (D. Maryland,
May 20, 1999).
The Piney Run Preservation Association, a non-
profit association whose activities included efforts to
protect the Piney Run Stream, filed suit against the
County Commissioners of Carroll County, Maryland,
the operator of a sewage treatment plant that
discharged to the Piney Run Stream. The
Association then brought a motion for summary
judgment to establish the County's liability under
CWA Section 505, with the County filing a similar
motion requesting that the court find that no liability
existed.
The case involved a long battle involving the
Association, the County and the Maryland
Department of the Environmental (MDE) over the
volume of the discharge from the County's
treatment plant and appropriate limits on discharges
of heat that MDE should impose in the County's
State-issued NPDES permit. The County held an
NPDES permit originally issued by the MDE in 1991
that was set to expire in February 1995. Because
at the time of the lawsuit the MDE had not reissued
the permit, the 1991 permit was in place. The
County's permit had no specific limit on effluent
temperature.
The citizen suit was preceded by years of
administrative and judicial wrangling between the
Association, the County and the MDE. In 1991, the
County had requested an increase in permitted
effluent from 500,000 to 900,000 gpd. In
administrative actions, the Association challenged
the MDE's decision to reissue the County's NPDES
permit allowing the increase on the grounds that
this action would continue and exacerbate the
"thermal pollution" of the stream. Despite the
Association's objections, the MDE determined that
it would issue the permit with the increased
discharge allowance. After exhausting all
administrative appeals, the Association challenged
the permitting decision in Maryland State court.
This resulted in action remanding the case to the
MDE for further determinations regarding the nature
of the discharge and associated impact to the Piney
River Stream.
26
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Water Enforcement Division
September 1999
After a hearing but before the MDE made any final
determination regarding the proposed changes to
the NPDES permit, the Association initiated its
CWA citizen suit by giving the required notice under
Section 505 of alleged CWA violations to the
County, the MDE and to EPA. The Association
subsequently filed suit, alleging that the County had
violated the terms of its NPDES permit by
discharging heat into the Piney Run Stream.
Recounting the factual issues pertinent to the case,
the district court noted that the County's permit had
no specific limit on effluent temperature. The
permit did include a requirement that the County
submit monthly reports to the MDE. Such reports
included the temperatures of the plant influent,
plant effluent, stream above the outfall and stream
sixty feet below the outfall. The Association
presented summaries of the reports that showed
that the temperature of the plant effluent had
exceeded the upstream temperature on 371 of 397
days.
Citing Atlantic States Legal Foundation v. Eastman
Kodak Co.. 12 F3d 353 (2d Cir. 1994), the County
argued that the district court lacked jurisdiction to
hear the case because the County's NPDES permit
did not include any effluent limitation for heat. In
the Atlantic States case, the Second Circuit held
that "once within the NPDES or SPDES scheme,
polluters may discharge pollutants not specifically
listed in their permits so long as they comply with
the appropriate reporting requirements and abide
by any new limitations when imposed on such
pollutants." The district court, however, noted
that the Ninth Circuit in Northwest Advocates v.
City of Portland. 56 F.3d 979 (9th Cir. 1995) had
held that the CWA "allowed a citizen suit to
enforce water quality standards that had not
been translated into numerical effluent limits on
the permit."
The district court found that based on the
language of the CWA Section 505, the
Association had the authority to bring the action
against the County. The court focused on the
language in Section 505 that states that an
action may be brought against "any person ...
who is alleged to be in violation of (A) an
effluent standard or limitation under this
chapter," with the term "effluent standard or
limitation underthis chapter" defined in Section
505(f) as, among other things, " an unlawful act
under subsection (a) of [CWA Section 301]."
Section 301 provides that except in compliance with
sections 301, 306, 307, 318, 402 and 404 of the
CWA, the discharge of any pollutant by any person
shall be unlawful. Based on its reading of this
statutory language, the court determined that the
County's discharge created a cause of action under
Section 505.
G. Enforcement
Penalties
Actions/Liabilities/
1. D.C. Circuit finds that EPA
reasonably interpreted the CWA as
precluding challenge to a state-
issued permit in a federal
enforcement action and upholds
administrative penalty for violations
of NPDES storm water permit related
to discharges from roofs of
buildings and gutters:
GMCv. U.S. EPA. 168 F.3d 1377 (D.C. Cir. March
23, 1999).
Petitioners General Motors Corp. (GM), sought
review of an administrative penalty of $62,500
imposed for 92 violations of its stormwater NPDES
permit (Outfall 002). In the administrative
enforcement proceeding GM had argued primarily
that EPA had erred in refusing to consider GM's
collateral attack on the validity of the State-issued
permit.
In the Court of Appeals, GM first argued that the
ALJ erred by following federal rather than Michigan
law, the latter of which arguably would have
permitted a collateral attack upon a state-issued
permit. The court rejected this argument because
in this instance there was a federal statute, the
CWA, to apply. GM then argued that there was not
27
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Water Enforcement Division
September 1999
substantial evidence supporting the ALJ's decision
because the permit "was invalid from the outset" but
EPA refused to hear an attack on the validity of the
permit. The court found that in the CWA Congress
has not explicitly addressed the question of whether
a State permittee may collaterally attack the validity
of its State-issued permit in a federal enforcement
proceeding. The court then found that EPA had
reasonably interpreted the CWA by holding that
GM could not challenge the validity of the State-
issued permit in the federal enforcement
proceeding because the proper forum for such
a challenge was before the State administrative
agency and in State court, and GM had failed to
seek review in either forum.
GM also argued that the ALJ erred in concluding
GM's permit for Outfall 002 did not expire on
October 1, 1990, the termination date for the
permit, since GM had not applied for a new permit
(the plant had ceased operation August 1988). The
court dismissed this argument because the ALJ had
explicitly stated that GM's penalty would remain the
same even if the EAB or this court were to
ultimately conclude that GM's permit expired on
October 1, 1990 and GM failed to challenge the
penalty calculation before the EAB or in this court.
Finally, GM claimed it was denied its due process
rights because it lacked notice that the metals
present in rainfall or leached from the roofs of its
buildings would be considered pollutants for
purposes of the CWA and its NPDES permit. The
court rejected this argument as well, finding that
GM's permit contained specific limits for copper,
lead and zinc discharged from Outfall 002, and that
GM, in informing the MDNR of the violations,
included the ambient and leached metals as
contributing to those violations. Hence, the court
found GM's lack of notice argument unpersuasive.
The court concluded that substantial evidence
supported EPA's finding of violations and denied
the petition for review.
2. District court holds ALJ finding of
liability was based on substantial
evidence:
Smith v. Hankinson. 1999 U.S. Dist. LEXIS 5151
(S.D.Ala. Mar. 31, 1999).
Plaintiff P. Smith sought judicial review of a $12,000
administrative penalty assessed by EPA for two
violations that involved discharging pollutants into a
wetland without a permit in an effort to fill the
wetland and construct an access road. The court
reviewed the violations to determine if there was
substantial evidence in the record to support the
violations, as well as to determine whether the
penalty constituted an abuse of discretion. Both
parties sought summary judgment. Plaintiff argued
that the total area involved was less than 1,000
square feet and that such a small area qualified for
coverage under a Nationwide permit, and was
therefore exempt from any violation of the CWA.
The court rejected this argument since the plaintiff
had not raised this claim during the administrative
hearing. The court also rejected the introduction of
an affidavit of B. Vittor, which supported plaintiffs
new claim and opposed the EPA's motion for
summary judgment. The court acknowledged there
were four exceptions to the prohibition on
consideration of extra-record material, but found
that plaintiff had not demonstrated that any of those
exceptions applied in this instance.
Plaintiff also disputed whether the wetlands into
which the discharge occurred were waters of the
U.S., and asserted that he had not controlled or
directed the activity that resulted in the discharge.
The court found that both elements had been
established by substantial evidence. The wetlands
determination had been based on the location of
the site, the regulatory definition of the term
"wetlands," and the three key characteristics of
wetlands (i.e., hydric soil, wetlands vegetation, and
wetlands hydrology). In addition, the court noted
that the wetlands was only yards away from Terry
Cove Harbor, a navigable cove connected to the
Gulf of Mexico. With regard to control over the
discharge, plaintiff asserted he did not own the
property, but the court found this contrary to
the evidence, and observed that ownership was
of no consequence, since plaintiff had
28
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September 1999
responsibility for, or control over, performance
of the work that resulted in the discharge.
Lastly, the court reviewed the penalty amount. The
court found that the ALJ had "meticulously
addressed" each of the statutory penalty factors
and imposed a penalty of $12,000, which the court
found to be appropriate. The court entered
judgment for EPA.
3. District court places 176 sewage
treatment facilities in receivership
based on overwhelming evidence of
repeated, unabated violations of the
CWA and the LEQA over an
extended period of time, as well as
defendant's blatant and continued
violation of a consent decree
intended to remediate such
violations:
United States v. Acadia Woods, Civ. Action No.
6:98-0687 (W.D. La., Mar. 22, 1999).
On July 31,1998, a consent decree was entered by
the parties that required defendants to undertake
remedial measures at 176 sewage treatment plants
to bring the sewage treatment facilities into
compliance with the CWA and NPDES program
requirements. In December 1998, inspections at 73
of these plants revealed 661 violations of the
consent decree. The U.S., and the Louisiana DEQ
as intervenor, originally sought an injunction and
then requested that the court issue an order
appointing a receiver with full powers to oversee
operations of defendant's sewage treatment plants.
Following a hearing on the merits, Judge
Tucker L. Melancon issued a memorandum
ruling and judgment that appointed a receiver
for defendant's sewage sludge treatment plants.
Key findings of fact included the following. The
consent decree required compliance with effluent
limitations specified in each NPDES permit issued
to defendants by the Louisiana DEQ. Inspections
conducted at 73 of the 176 plants identified 661
violations of the consent decree; none of the plants
were found to be in compliance with the consent
decree. Plants were found to be in critical disrepair,
with one-third of the facilities requiring replacement.
Defendants had continued to discharge large
quantities of potentially harmful pollutants, in
excess of permit limits, into local waters, streams
and bayous. Such pollutants included raw sewage,
solids, and sludge that had not been adequately
treated or disinfected. Defendants committed
numerous operational violations, and lacked a basic
understanding or had a blatant disregard for the
public health components of operating of sewage
treatment plants. The violations showed that
injunctive relief was inadequate to remedy the
violations and protect the public health. Defendants
lacked the financial ability to conduct their business
in an environmentally sound manner. The
extraordinary relief sought was needed to protect
the citizens and environment of Louisiana.
Key conclusions of law included the following.
Section 362(b)(4) of the Bankruptcy Code did
not operate as a stay to the enforcement of a
"... governmental unit's police and regulatory
power, including the enforcement of a judgment
other than a money judgment, obtained in an
action or proceeding by the governmental unit
to enforce such governmental unit's or
organization's police or regulatory power."
Jurisdictional tension between the bankruptcy court
and the district court was resolved by the
appointment of the same individual as receiver and
bankruptcy trustee. Defendants discharge of
pollutants into waters of the U.S. were violations of
the CWA and the Louisiana EQA.
The court concluded that the appointment of a
receiver was necessary because of the
overwhelming evidence of repeated, unabated
violations of the CWA and the LEQA over an
extended period of time as well as due to the
considerable violations of the consent decree. The
court noted given the magnitude of the problems,
the prolonged noncompliance, and the fact that the
defendants had failed to make progress toward
abating what were clearly flagrant violations of the
law since the consent degree was entered, it was
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appropriate to appoint a receiver and grant him or
her broad powers. The court stated that it believed
that the regulatory process for sewage treatment
facilities in the State of Louisiana may have
systemic problems that are state wide. Based on
this concern, the court's order went so far as to
require that the Secretary of Louisiana, with
counsel, meet with the State Governor, the Speaker
of the House, the President of the Senate, and
other officials to inform them about this case and to
examine the State's ability to better ensure that
similar situations do not arise in the future.
4. District court holds that violations
were not caused by "single
operational upsets" and that EPA
could enforce effluent limits for
internal outfalls:
United States v. Gulf States Steel, Inc., 1999 U.S.
Dist. LEXIS 8834 (N.D. Ala. June 8, 1999).
This action was brought against Gulf States Steel,
Inc. (GSSI) alleging CWA violations at GSSI's
manufacturing facility. The Alabama Department of
Environmental Management (ADEM) had issued an
NPDES permit to GSSI's predecessor in December
1987 that authorized discharges from a single
outfall, 001. On September28,1994, ADEM issued
a new NPDES permit to GSSI's predecessor that
imposed additional conditions, including effluent
limits, on six outfalls located at various points along
the facility's internal wastewater treatment system.
Upon GSSI's formation in April 1995 and acquisition
of the facility, the 1994 permit was administratively
transferred to GSSI. In 1997, the government filed
this action against GSSI seeking civil penalties and
injunctive relief, alleging that GSSI had violated its
NPDES permit effluent limitations. In its motion for
partial summary judgment, the government sought
an Order holding GSSI liable for 1,000 violations,
from May 1, 1995 to September 30, 1998,
comprising 4,290 days of violation.
GSSI offered two arguments to defeat the
government's claims of CWA violations. First,
GSSI argued in its motion for partial summary
judgment that the government could not bring its
action for any of the alleged violations of the
effluent limitations for outfalls in GSSI's internal
wastewater treatment system because the internal
outfalls were not discharges into waters of the U.S.
The government argued that GSSI was improperly
attempting to challenge its obligations under its
NPDES permit, stating that the proper procedure to
challenge the conditions would have been to apply
for federal review in the United States Court of
Appeals under CWA Section 509. In the
alternative, the government argued that even if the
court found that GSSI's challenge was not improper
under Section 509, still GSSI was prevented from
contesting the effluent limitations on the internal
waste streams because neither GSSI nor its
predecessor, availed itself of administrative and
judicial review available under Alabama state law.
The court rejected the government's first argument,
stating that because GSSI's permit was issued by
ADEM, not the EPA, the terms and conditions of the
permits were not subject to federal review, and that
under the plain language of Section 509(b)(2), an
alleged violator is prohibited from litigating the
terms of its NPDES permit in an enforcement action
only if the alleged violator chose to forego review
available under Section 509(b)(1). The court,
however, agreed with the government that GSSI
was precluded understate law from contending
that the permit terms were not enforceable,
stating that Alabama state law, like Section
509(b)(2), expressly prohibited an alleged CWA
violator from collaterally attacking the terms of
its permit in an enforcement proceeding.
GSSI also argued that its challenge to the internal
outfall effluent limitations did not constitute an
impermissible collateral attack, but instead
challenged the "enforcement" of the limitations by
contesting whether the discharges were to waters
of the U.S., an element of CWA liability, relying on
language in 40 CFR Section 122.2 that states
"Waste treatment systems, including treatment
ponds or lagoons designed to meet the
requirements of the [Clean Water Act] ... are not
waters of the United States." The Court again
concluded that GSSI's failure to timely petition
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for review of the permit precluded GSSI's attack
on the conditions therein, stating that
regardless of whether the internal waste
streams were themselves waters of the U.S.,
GSSI was required to comply with all conditions
of its NPDES permit, including the limitations
for the internal outfalls which eventually made
their way to the receiving stream.
Addressing other GSSI challenges to the
enforcement of the limits on the internal outfalls, the
court rejected GSSI's argument because the
company had no legal existence until after the 1994
permit was issued to its predecessor, it was
impossible for it to administratively challenge the
internal waste stream limits, stating that GSSI
assumed the liabilities and obligations of its
predecessor as part of the business transaction and
that it now stood in the shoes of its predecessor
regarding the NPDES permit. The court also
rejected GSSI claims that it should be excused from
having to comply with the permit effluent limitations
on the internal waste streams because, allegedly,
ADEM representatives made verbal representations
that the limitations would not be enforced, stating by
its terms the permit required compliance with all its
terms and conditions, and that verbal
representations by ADEM officials without formal
modifications in the permit do not excuse the holder
from permit terms. The Court thus concluded that
permit effluent limitations on the internal outfalls
were enforceable and that the government had
established that there were no genuine issues of
material fact with respect to GSSI's liability for
permit violations from the internal outfalls.
Accordingly, the Court denied GSSI's motion for
partial summary judgment on the issue of its
alleged non-liability for violations concerning
internal waste stream effluent limitations.
Turning to this issue of the number of alleged
violations, GSSI argued that the government
"over-counted" the number of violations for which
GSSI was liable, contending that a substantial
number of its alleged violations were caused by
"single operational upsets" and should have been
counted as single violations. GSSI basically argued
that under Section 309(d), if an upset, a term
defined at 40 CFR Section 122(n)(1), is found to
have occurred, then the upset should be counted as
one violation, not all effluent limitation violations that
result from the upset. The court noted that under
CWA Section 309(d), which sets out the factors a
court must consider when determining the amount
of a civil penalty, the concluding sentence provides:
"For purposes of this subsection, a single
operational upset which leads to simultaneous
violations of more than one pollutant parameter
shall be treated as a single violation." The court
stated that the "single operational upset" defense,
citing U.S. v. Smithfield Foods, Inc., 972 F.Supp.
338, 342 n. 7 (E.D.Va.1997), was not a complete
defense to liability, but relates, rather, only to the
amount of penalties the district court may impose.
The court concluded that GSSI had not presented
sufficient evidence to establish the defense. GSSI
had contended that a number of single parameter
violations that occurred for a number of consecutive
days should be counted as single violations under
that defense. The Court noted that, contrary to
GSSI's interpretation, Section 309(d) did not
mandate that multiple-day violations of a single
pollutant parameter be counted as a single
violation when such multiple-day violations are
attributable to single operational upsets; rather,
that the language provided that simultaneous
multiple pollutant parameter violations are to be
counted as if they were a single pollutant
parameter violation where the multiple pollutant
parameter violations were caused by a single
operational upset. The court stated that in its
estimation, the Section 309(d) single
operational upset defense was not intended to
mitigate violations caused by upsets where the
polluter experiences noncompliance with one
pollutant parameter due to some extraordinary
event and then fails to take immediate remedial
steps and thereby allows that noncompliance to
continue over an extended period, and that to
hold otherwise would actually give a polluter
incentive to delay action to correct
noncompliance resulting from an upset. The
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court also rejected GSSI's assertion of the defense
on the basis that some of the events claimed as
"upset" were neither exceptional or beyond its
reasonable control; and rejected GSSI's arguments
that Section 309(d) required that every one of its
daily maximum violations that were attributable to a
single cause be counted as only one violation for
each cause and that Section 309 precluded the
counting of monthly violations of per day average
effluent limitations as violations occurring each day
of the month, where the monthly violation has a
single cause.
5. EAB holds no reversible error or
abuse of discretion occurred where
ALJ imposed $2,000 penalty for
wetlands violation:
In re: Britton Construction Co., BIG Investments,
Inc., and William and Mary Hammond, 1999 EPA
App. LEXIS 9 (Mar. 30, 1999).
EPA Region III appealed the assessment of a
$2,000 penalty against respondents for filling, as
part of a construction joint venture, wetlands
located on Chincoteague Island, Virginia. The
Region had sought a $125,000 administrative
penalty. Respondents also appealed the penalty.
EPA made several arguments on appeal. First,
EPA argued that the ALJ failed to articulate the
nature and extent of specific reductions made in
decreasing the proposed penalty. The EAB found
that the ALJ made a good faith effort to consider all
the requisite statutory factors, and ultimately
provided a sufficient sense of the reasons for
reducing the penalty.
Second, EPA maintained that the ALJ had
improperly reduced the penalty assessed based on
EPA's enforcement and respondent's mitigation.
The EAB did not agree, and found that it was
entirely appropriate for the ALJ to consider the
government's action regarding this matter and that,
EPA's own general penalty framework policy
provides for penalty reduction based on corrective
action.
Third, EPA argued that admitting respondent's tax
records after the hearing and reducing respondent's
penalty based on those records was reversible
error. The EAB observed that the ALJ had not
reduced the penalty based on the respondent's tax
records, but that those records were used to bolster
previously submitted affidavits that characterized
respondent's ability to pay. In addition, it observed
that final penalty was predominantly based on the
small area of wetland affected, and the successful
mitigation of the site. The EAB found that, although
the ALJ could be criticized for how this material was
admitted, "no material prejudice and, hence, no
reversible error resulted from denying the Region
an opportunity to have experts analyze these
particular tax returns."
Fourth, EPA argued that the ALJ had failed to
consider the increased property value as measure
of economic benefit. The EAB declined to consider
this argument because EPA had not adequately
raised it before the ALJ. Finally, EPA asserted that
the ALJ calculated respondent's wrongful profits
improperly. The EAB found that because the
USAGE had authorized respondents to build on the
sites, it would have been unjust for the ALJ to allow
the government to recoup any "wrongful" profits that
resulted from the construction.
Respondents argued that no regulated fill activities
had occurred on the site after November 28, 1989,
and, therefore, the five-year general federal statute
of limitations barred the government's claims. The
EAB disagreed, and found that the record indicated
that respondents had placed fill material on the site
just prior to February 6, 1990, within five years of
when the complaint was filed (November 28,1994).
Respondent also argued that EPA had not provided
fair notice of the requirements that were enforced,
since respondent viewed EPA's standards for
remediating wetlands violations as different from
those of the USAGE. The EAB rejected this
argument because respondent had failed to raise it
in the administrative hearing. Respondent also
argued that the penalty initially sought by EPA
($125,000) was arbitrary and violated respondent's
due process rights. The EAB found no error on the
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Water Enforcement Division
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part of the ALJ. Finally, respondents argued that
they lacked the ability to pay the penalty. The EAB
concluded the Region had established respondents'
ability to pay, and respondents had not rebutted
that fact.
H. Criminal Cases
1. Second Circuit affirms criminal
convictions for knowing discharge
of pollutants and for the negligent
discharge of oil:
Notice: Rules of the Second Circuit Court of
Appeals may limit citation to unpublished opinions.
Please refer to the rules of the United States Court
of Appeals for this circuit.
United States v. Superior Block & Supply Co., 1999
U.S. App. LEXIS 14013 (2nd Cir. June 22, 1999).
In this matter before the Second Circuit Court of
Appeals, Superior Block & Supply Co. and its
president, Ralph Crispino, Jr. appealed their
convictions in the district court for the knowing
discharge of industrial pollutants into navigable
waters without a permit under CWA Sections
309(c)(2), 311 and 402 and the negligent discharge
of a "harmful" quantity of oil into a navigable river
under CWA Sections 309(c)(1) and 311(b)(3).
Superior was also convicted of killing migratory
birds through the discharge of oil in violation of the
Migratory Bird Act, 16 U.S.C. Section 703.
The case involved two types of discharges into the
Quinnipiac River from the Superior facility. The first
type was discharges for concrete-block grinding
operations that occurred from 1993 through 1995.
The district court record indicated that beginning in
1993, officials at Superior, including Crispino,
became aware that the company had not obtained
necessary permits for its wastewater discharges. In
early 1995, officials from the Connecticut
Department of Environmental Protection (DEP)
inspected Superior's operations and issued a
Notice of Violation noting the lack of a permit for the
discharges from the grinding operations. Between
March and June 1995, Superior's environmental
engineer met several times with DEP officials to
discuss the facility's permit application, at which
Superior alleged that DEP acknowledged that the
discharges were occurring and did not indicate that
such discharges should be stopped. Superior
submitted its permit application in June 1995 and
waited for further DEP action.
The second type of discharge was the spilling of oil
from Superior's boilers into the Quinnipiac. In
October 1995, a small quantity of oil spilled into a
trench on the floor reached the river through the
storm drain system. It was alleged that employees
were aware that some oil reached the river. On the
day following this first incident, a more serious
incident occurred, as a boiler seal broke resulting in
the discharge of between 5,500 and 6,000 gallons
of industrial fuel oil into the Quinnipiac. Most of the
oil flowed through the interior drains, but some
flowed out of a window and into external floor drains
that also fed into the storm drain system.
On appeal, the defendants challenged their CWA
convictions for the knowing discharge of pollutants
and for the negligent discharge of oil. Superior did
not challenge its conviction under the Migratory Bird
Act, and neither defendant challenged the
sentences imposed by the district court. The
Second Circuit affirmed the convictions, addressing
each of the defendant's arguments as follows.
First, the defendants argued that the evidence
presented at trial was insufficient to support the
necessary finding that they were aware of the
nature of the pollutants discharged through the
concrete grinding process. The court rejected this
argument, stating that the government argued
to the jury that it could infer defendants'
awareness of the nature of the wastewater
discharge from the defendants' knowledge that
they needed a permit from DEP for the
discharges. The court found that under the
circumstances presented, such an inference was
permissible.
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Water Enforcement Division
September 1999
Second, Superior and Crispino challenged their
conviction relating to the negligent discharge of oil
on the grounds that they were only negligent as to
the discharge into the internal drains, not the
discharge of the oil to the Quinnipiac. They also
argued that even if the internal drains had been
plugged, some lesser amount of oil would still have
flowed out of the window and "nonnegligently" into
external drains. Accordingly, the defendants
argued that the proscribed injury, the "riparian
release of a 'harmful' quantity of oil" under CWA
Section 311(b)(3) would have occurred regardless
of their negligent failure to plug the internal drains.
The court rejected this argument, stating that
even if some harmful amounts of oil would have
reached the river with or without the
defendants' negligence, there was enough
evidence that less oil would have reached the
river if they had plugged the drains. Accordingly,
the court found that the defendants should be
punished for the harmful quantity that was
negligently released.
Finally, the defendants challenged two aspects of
the jury instructions. In addressing these
contentions, the court first stated that because the
defendants failed to object to the charges at trial
and the alleged error was not "structural," its review
of the trial court's instruction would be for "plain
error" under United States v. Zvi, 168 F.3d 49, 58
(2d Cir. 1999), with the standard being to determine
"whether the instruction caused a miscarriage of
justice when viewed as a whole and in the context
of the entire trial." Based on these guidelines, the
court found that no error met this standard.
Accordingly, the Second Circuit affirmed the
judgment of the district court.
2. Sixth Circuit reverses grant of
motion for judgment of acquittal and
reinstates conviction for discharge
of pollutants from a ship without a
NPDES permit:
United States v. M/G Transport Services, Inc., 173
F.3d 584 (6th Cir. April 22, 1999).
The United States appealed a district court's
decision that granted defendant's motion for
judgment of acquittal on various charges (counts
4-9) related to the dumping of ash and other
pollutants into federal waterways without a permit.
A jury had previously convicted M/G Transport
Services Inc., and J.H. Thomassee, a company
Vice-President with operational control, of
conspiracy to violate the CWA (count 1) and of
failure to report an oil spill from the M/V Richard A
Main on July 2, 1990 (count 2); and convicted M/G
Transport Services Inc., Thomassee, and two
captains of discharging or aiding and abetting in the
discharge of pollutants without a permit (counts
4-9). In granting the motion for judgment of
acquittal, the district court had found that the
government had failed to produce evidence that the
crimes had been committed on or about the dates
alleged, and that principles of due process
precluded holding the defendants criminally liable
for discharging pollutants "when no permit would
have ever been issued" for the discharges
undertaken by the defendants.
The Sixth Circuit Court reviewed defendants
alleged due process violation first. Defendants
had argued that under United States v. Dalton.
960 F.2d 121 (10th Cir. 1992) (conviction for
failure to register a firearm reversed because by
law that firearm could not be registered under
any circumstances) counts 4-9 must be
dismissed. The court distinguished Dalton from
the present case, finding that here the CWA
does not provide that a permit for the discharge
of pollutants could never be issued, only that
the quantity and quality of the pollutants may
have needed to be regulated to conform with
the requirements imposed under the CWA.
In addressing the sufficiency of the evidence,
the court found that the government had indeed
shown that the alleged violations had occurred
reasonably near the dates established in the
indictment, and the court concluded that this
was sufficient. The court found that it was
reasonable for the jury to infer from testimony
describing how burn barrels were dumped within
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September 1999
days of becoming filled with ash and residue that
such dumping occurred within a short period of
when the captain's log indicted a barrel of trash was
burned. In addition, the court found that the
testimony presented to the effect that various
pollutants were among the items burned in the burn
barrels was sufficient to support the inference that
the residue remaining in the barrels, which were
ultimately dumped into various rivers, contained
pollutants regulated under the CWA.
3. Ninth Circuit affirms criminal
conviction for improper indirect
discharge:
United States v. Iverson, 162 F.3d 1015 (9th Cir.
Dec. 11, 1998).
Defendant appealed his conviction of four counts of
having violated the CWA, the Washington [State]
Administrative Code (WAC), and the City of
Olympia's Municipal Code (Olympia Code), and one
count of conspiring to violate the WAC or the CWA.
Defendant was founder, company President, and
Chairman of the Board, of CH20, a company that
blended chemicals. The violations stemmed from
defendant's having discharged drum-cleaning
wastes to the sanitary sewer without a permit or
other approval during 1992 - 1995. On appeal,
defendant argued: 1) the district court
misinterpreted the relevant laws; 2) the relevant
provisions are unconstitutionally vague; 3) the
district court erred in formulating its "responsible
corporate officer" jury instruction; and 4) the district
court erred in its admission of evidence of
defendant's prior discharges of industrial wastes.
Defendant first argued that the court erred
because it did not allow defendant to address
the issue of the effect of his discharge on water.
Defendant argued that the WAC and Olympia
Code allow discharges of industrial waste that
do not affect water quality. The court
disagreed, and found that the WAC and Olympia
Code incorporated the federal standard by
reference and that this standard prohibited the
discharge of hauled or trucked industrial waste
except at a discharge point designated by the
POTW.
With regard to defendant's vagueness challenge,
defendant argued that the three definitions of the
term "pollutant" in the CWA, the WAC and the
Olympia Code created vagueness. The court
again disagreed, and found that the WAC and
the Olympia Code properly incorporated by
reference the federal prohibition on the
discharge of trucked or hauled industrial waste,
and that a reasonable person or ordinary
intelligence would understand from reading the
relevant provisions this prohibition.
Defendant also argued that the court had erred in
formulating its "responsible corporate officer" jury
instruction because it did not adopt defendant's
instruction, which provided that a corporate officer
is responsible only when the officer "in fact exercise
control over the activity causing the discharge or
has an express corporate duty to oversee the
activity." The court, in interpreting this term for
the first time, rejected defendant's instruction
and held based on the wording of the CWA, the
Supreme Court's interpretation (see, United
States v. Dotterweich. 320 U.S. 277 (1943) and
United States v. Park. 421 U.S. 658 (1975)) and
this court's interpretation of similar
requirements, that, underthe CWA, "a person is
'responsible corporate officer' if the person has
the authority to exercise control over the
corporation's activity that is causing the
discharges. There is no requirement that the
officer in fact exercise such authority or that the
corporation expressly vest a duty in the officer
to oversee the activity." The court further
rejected defendant's arguments regarding the rule
of lenity, the wording of the instruction, and the
need to specifically find a violation of the CWA.
The court concluded that the jury instructions were
not erroneous.
With respect to the admissibility of the defendant's
prior acts, the court rejected defendant's arguments
that prior discharges did not tend to prove a
material fact or were too remote. Rather, the court
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September 1999
found that such discharges tended to prove
familiarity and knowledge because they were the
result of the same drum cleaning activities, and
because such prior acts were so similar to the
present violations and defendant's knowledge of the
CH20's industrial waste had not changed, the fact
that the prior acts had occurred seven years before
did not make them too remote. The court affirmed
the convictions.
4. Ninth Circuit upholds sewage sludge
hauler's sentence and conviction for
aiding and abetting the unlawful
disposal of sewage sludge, for
conspiracy and mail fraud:
United States v. Cooper, No. 97-50296 (9th Cir.
Apr. 9, 1999).
Defendant Gordon Paul Cooper was a part owner
of Chino Corona Farms (CCF) a company that
handled sewage sludge generated by San Diego
wastewater treatment plants. Under its contract
with the City, CCF removed sewage sludge for a
fixed amount per ton. CCF was required to submit
weighmaster certificates for each truckload hauled,
to obtain City approval to haul to a proposed use or
disposal site and to submit bills of lading to show
each truckload's ultimate destination. The contract
did not refer to the City's NPDES permit issued by
the California Water Quality Board, which required
the City to give prior written notice of any planned
changes in its sewage sludge use or disposal
practice and to regularly report on its sewage
sludge disposal, describing the location, the rate of
application in pounds per acre per year and
subsequent uses of the land. Soon after beginning
work, with City and Water Quality Board approval,
CCF began shipping city sewage sludge to Mexico.
When logistical problems arose, Cooper switched
disposal sites, without notifying the City or the
Water Quality Board, to a California farm. At the
same time Cooper was land applying the sewage
sludge at the new site, CCF continued to receive
weighmaster certificates indicating that the sludge
was being shipped to Mexico and sent the false
certificates to the City to support its invoices.
The City subsequently discovered that Cooper had
been hauling sewage sludge to the new site and
that the weighmaster certificates were false and
canceled the CCF contract. Cooper resigned, was
investigated by the FBI, indicted, and after a jury
trial, convicted of conspiracy, aiding and abetting
the unlawful disposal of sewage sludge and mail
fraud related to his involvement in the disposal of
sewage sludge. After a sentencing hearing, the
district court adopted the presentence report's
recommendations and sentenced Cooper to fifty-
one months' imprisonment.
Cooper appealed, arguing the following: that he
complied with Federal regulations governing
sewage sludge; that he could not be criminally
liable for violating an NPDES permit to which he
was not a party; that the CWA was void for
vagueness; that the prosecution failed to disclose
an exculpatory FBI report; that a government
witness falsely testified that he had no agreement
with the government; that the prosecutor committed
misconduct during final argument; and that the
district court improperly enhanced his sentence.
The Ninth Circuit rejected each of Cooper's
arguments and affirmed the conviction and
sentence based on the following analysis. First,
stating that by their own terms the Part 503
regulations and the CWA do not usurp local control
over sewage sludge disposal decisions, the Ninth
Circuit rejected Cooper argument that he did not
need City or Water Board approval to apply the
sewage sludge at the farm site because the Part
503 standards preempted or superceded the notice
requirements in the City's NPDES permit and that
compliance with Part 503 relieved him of the duty to
comply with the terms of the City's NPDES permit.
Second, addressing Cooper's argument that he
could not be held liable for violating the City's
NPDES permit because he was not a party
thereto, the court disagreed, stating that
§ 309(c)(2)(A) imposes criminal liability on "any
person who knowingly violates ... any permit
condition or limitation implementing any of
such sections [of the Clean Water Act] in a
permit issued under" § 402. Citing United
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Water Enforcement Division
September 1999
States v. Brittain. 931 F.2d 1413 (10th Cir. 1991)
and United States v. Iverson. 162 F.3d 1015 (9th
Cir 1994), the court held that the phrase "any
person" was broad enough to include both
permittees and nonpermittees. Third, regarding
the "knowledge" requirement necessary for a
criminal conviction, the Ninth Circuit held that there
was ample evidence that Cooper knew of the
NPDES permit and its application to his conduct,
making him liable under § 309(c)(2). Fourth, the
court rejected Cooper's contention that §§ 309
and 402 should be considered "void for
vagueness" because the provisions do not
distinguish between different grades of sewage
sludge. Finally, the court rejected Cooper's
argument that CCF's contract with the City required
CCF to comply with the later enacted Part 503,
stating that Cooper's actions did not comply with
the new regulations because the new regulations
did not supercede the City's NPDES permit.
After rejecting several evidentiary and procedural
challenges by Cooper regarding the admissibility of
evidence, witness testimony and allegations of
prosecutorial misconduct during closing arguments,
the court upheld the district court's interpretations of
the Federal Sentencing guidelines, finding that the
court's application of the facts to the guidelines and
corresponding enhancement decisions to be
appropriate.
5. District court denies motion by CWA
defendant to suppress evidence as
unconstitutionally obtained:
United States v. Johnson, et al., 1999 U.S. Dist
LEXIS 9432 (June 18, 1999).
This motion was one of several brought in a
criminal action involving eleven defendants charged
with 31 counts of criminal violations, including
conspiracy to violate the CWA; violations of NPDES
permit conditions for failing to provide proper
operation and maintenance and failing to take
samples and perform other required analyses;
making false statements; witness tampering; and
obstruction of the criminal investigation. Prior to
trial, one of the defendants, Glenn Kelly Johnson,
made a motion to the court to suppress oral
evidence that Johnson claimed was
unconstitutionally obtained. The government
opposed the motion.
Johnson was not formally arrested. In his motion,
however, he claimed that during the exercise of the
valid search warrant at his place of employment,
the government "effected an unconstitutional arrest
of his person" through the use of a large number of
armed agents to execute the search warrant.
Through this "thinly veiled threat of violence,"
Johnson alleged that the government obtained oral
statements from him that he contended "may lead
to other evidence that the prosecution might use at
trial." The government contended that at the
beginning of the execution of the warrant, all
employees were informed that they were free to
stay on or leave the premises at their discretion and
that several employees did actually leave.
The district court's analysis focused on whether
the facts alleged by Johnson constituted a
"custodial interrogation." If the court
determined that Johnson was in the
government's custody at the time he made his
statements, then such statements would be
considered unconstitutionally obtained.
The court first stated that the Supreme Court in a
line of cases has defined a "custodial interrogation"
as "questioning initiated by law enforcement officers
after a person has been taken into custody" and
that a person is "in custody" when he is formally
arrested or when a reasonable person in the
suspect's position would understand the situation to
constitute a restraint on his freedom of movement
that is consistent with the constraint typically
associated with formal arrest." The court stated
that the relevant inquiry to determine whether
there has been such a restraint is how "a
reasonable person in the suspect's position
would have understood the situation," with a
"reasonable person" being "a person who is
neutral to the purposes of the investigation -
that is, neither guilty of criminal conduct or
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overly apprehensive nor insensitive to the
seriousness of the circumstances." The court
added that the key issue "was not what did the
defendant think was happening to him when he
gave the damaging information, but what would the
reasonable person have thought under the same
circumstances."
Turning to relevant case law, the district court
stated that the Fifth Circuit, under United States
v. Paul. 142 F.3d 836 (5th Cir 1998), United
States v. Fike. 82 F.3d 1315 (5th Cir. 1996), and
United States v. Bengivenga. 845 F2d 593 (5th
Cir 1988), had formulated a four-factor test to
determine when questioning amounts to
custodial interrogation: 1) the length of the
detention and questioning; 2) whether the
interrogation took place in a private or public
setting; 3) the number of government agents
conducting the interview; and 4) the
surrounding circumstances of the detention.
Applying these factors, the district court found
that the defendant was not in the custody of the
government at the time of his questioning.
Thus, his statements were not
unconstitutionally obtained. The court focused
on the fact that Johnson's detention was brief, that
the questions were asked at his place of
employment, that the number of agents used in
executing the warrant was reasonable, and that the
circumstances surrounding the alleged arrest, for
example, the fact that Johnson was informed that
he was free to leave the premises and the fact that
the warrant was executed during the workday,
militated against a finding that he was in custody.
The court concluded by stating that even if Johnson
was in custody at the time of his statement, his
questioning by government officials did not amount
to an interrogation. Based on this analysis, the
district court denied Johnson's motion.
I. Section 311 (Oil and Hazardous
Substance Liability)
1. District court holds that § 311 is not
the exclusive CWA enforcement
authority available to address an
accidental spill of petroleum, but
that § 309 also provides such
authority:
United States v. Texaco Exploration & Production
Co., Case No. 2:98-CV-0213S; United States v.
Mobil Exploration and Production. Co., Case No.
2:98-CV-0220S (May 27, 1999, D. Utah).
The U.S. brought claims against defendants
Texaco and Mobil that alleged defendants'
"pipelines and onshore facilities ruptured, leaked,
and/or overflowed causing oil and/or produced
water to spill into the environment" in violation of §§
309 and 311 of the CWA. Defendants moved to
dismiss the claims brought under § 309 of the
CWA. Defendants argued that the remedial
schemes set forth in §§ 309 and 311 of the CWA
are mutually exclusive, and that § 309 applied only
to "chronic, continuous, and anticipated
discharges..." that can be controlled through
treatment and can be regulated through the "CWA's
discharge permitting program."
Defendants argued that because the discharges
here were not anticipated, were not from typical
point sources, and were not amenable to NPDES
permitting, § 309 should not apply. Defendants
made three primary arguments.
First, defendants argued that because § 309 does
not enumerate § 311 as within its basic
enforcement framework, and because § 311
proscribes the discharge of oil and hazardous
substances (including providing its own definitions),
§ 311 "governs enforcement of the Spill Program."
The court did not agree. The court observed
that nothing in the CWA specified that §§ 309
and 311 were mutually exclusive, but that the
Act did specify that a person could not be
subject to civil penalties under both §§ 309 and
311, which would not be possible if they were
mutually exclusive. The court further observed
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that § 309(a)(3) authorizes actions for injunctive
relief for violations of § 301 (a) generally, and
that § 301 (a) applies to any person who
discharges a pollutant, not just permittees.
Second, defendants argued that the 1978
amendments to § 311 of the CWA that excluded
discharges that were in compliance with a permit
indicated Congresses' intent to address
unanticipated discharges under § 311 exclusively.
The court allowed that this argument supported
defendants' position to some degree, but found that
the amendments did not go so far as to suggest
that § 311 was intended to be "the exclusive
remedy for accidental spills."
Finally, defendants argued that case law supported
their position, however, the court observed that
defendants cited no case in which a § 301 or § 309
claim had been dismissed on the grounds that §
311 was the exclusive remedy for a "classic spill."
The court noted that in Marathon Oil v. U.S. EPA,
No. 97CV-267D (D. Wyo. Aug. 20,1998) the district
court rejected defendants' argument. It also
observed that in United States v. Hamel, 551 F.2d
107 (5th Cir. 1977), the court concluded that
discharged gasoline was a pollutant and §§ 301
and 309 were alternative provisions. The court
added that if § 309 did not apply to an
accidental discharge, then a whole category of
spills (i.e., accidental spills from point sources)
could pollute the Nation's waters with
"impunity."
2. District court upholds $5,000 CWA
penalty assessment imposed by U.S.
Coast Guard against an oil terminal
facility that discharged a harmful
quantity of oil into an adjacent bay
based on finding that Coast Guard's
determination was supported by
substantial evidence in the
administrative record and was not
an abuse of discretion:
BP Exploration & Oil, Inc. v. U.S. DOT and USCG,
44 F. Supp. 2d 34 (D.D.C. 1999).
In this matter, BP Exploration & Oil, Inc. challenged
the Coast Guard's assessment of a $5,000 penalty
under the CWA for discharging a harmful quantity
of oil from its oil terminal facility into adjacent Curtis
Bay. CWA Section 311(b)(3) prohibits the
discharge of oil in harmful quantities into navigable
waters, with "discharge" defined to include "spilling,
leaking, pumping, pouring, emitting, emptying, or
dumping...." Section 311 does, however, exempt
certain discharges from coverage if such
discharges fall within one of three exemptions set
out in Section 311 (a)(2). The exemption relevant to
this case was "Exemption C," which provides that
"continuous or anticipated intermittent discharges
from a point source, identified in a [NPDES permit
or application], which are caused by events
occurring within the scope of relevant operating
systems" are not discharges prohibited under
Section 311. EPA regulations at 40 CFR
117.12(d)(2)(iii) provide that a discharge is
permitted under Exemption C if it is caused by "a
control problem, an operator error, a system failure
or malfunction, an equipment or system startup or
shutdown, an equipment wash, or a production
schedule change, provided that such upset or
failure is not caused by an on-site spill of a
hazardous substance."
BP's terminal included an Oil Water Separator
(OWS), a storm sewer line, storage tanks and a
truck-loading ramp. The storm sewer line carried
storm water and entrained oil from nearby storage
tanks and the truck loading rack to the OWS. The
incident giving rise to the violation occurred when
heavy rains caused BP's storage tank areas to
flood, prompting BP to drain the storage tank areas
into the OWS. Simultaneously, a BP customer
spilled oil on the truck loading rack. While the
storage tanks were draining, stormwater flowed
through the OWS at a rate of approximately 1,865
gallons per minute (gpm), with oil entering the bay.
The Coast Guard initiated civil proceedings against
BP for illegally discharging oil. At hearing, BP
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argued that the discharge resulted from "operator
error" when BP employees disturbed already-
separated oil in the OWS during their attempt to
cleanup the oil with absorbent pads. Accordingly,
BP argued that Exemption C under CWA Section
311 should apply. Both parties agreed in the
administrative proceeding that the OWS functioned
most efficiently at a flow rate of 300 gpm, and at
that rate, oil would not collect in the third
compartment and subsequently be discharged to
receiving waters. Although the hearing officer
found that the cleanup efforts did contribute to the
problem, he concluded that the increased flow rate
caused the oil spill and assessed a $5,000 penalty.
BP appealed the penalty assessment to the Coast
Guard Commandant, who found that Exemption C
did not apply because the record did not indicate
that BP's OWS was designed to, nor was it capable
of, processing the spilled oil and rainwater. BP paid
the penalty and filed an action seeking a refund.
Both parties submitted for summary judgment, with
the district court ruling as follows.
First addressing Coast Guard jurisdictional
arguments, the court rejected the contention that
it lacked jurisdiction to hear the case because
the CWA has no refund provision and that BP
failed to identify any waiver of sovereign
immunity that would permit its refund action,
stating that the Commandant's decision to
impose a penalty constituted a "final agency
action," that BP properly filed a notice of appeal
under Section 311(b)(6)(G)(i), and that BP was,
therefore, entitled to a review of the decision
under the Administrative Procedure Act, 5
U.S.C. Section 704. The court also stated that
Section 311(b)(6)(G) expressly permits any person
against whom a penalty has been assessed to
obtain review of the assessment in the U.S. District
Court for the District of Columbia, and that BP had
followed all procedural requirements necessary to
obtain this review. Next, regarding the Coast
Guard's argument that BP's action was moot
because it had already paid the penalty, the court
held that BP was under a statutory and regulatory
obligation to make the payment immediately and
that such action did not preclude it from taking the
action under Section 311(b)(6)(G).
The court then turned to BP's challenges to the
Coast Guard's enforcement and penalty decisions.
First, regarding BP's allegations that the Coast
Guard improperly relied upon its "Marine Safety
Manual" in its regulatory and enforcement
decision making because the Manual was not
promulgated in accordance with the notice and
comment requirements the APA, the court,
noting that while APA Section 553 expressly
requires agencies to afford notice and comment
of a proposed rulemaking and an opportunity
for public comment prior to promulgating a
"substantive rule," the issuance of "interpretive
rules and policy statements and guidance" was
not subject to these same requirements. The
court concluded that the Manual was not
intended to be a "binding" document, and,
therefore, the Coast Guard was not required to
follow APA procedures before relying on the
Manual.
Next, the court turned to BP's contention that the
Coast Guard's penalty decision was not based on
substantial evidence in the record and was an
abuse of discretion because the hearing officer
failed to consider evidence related to the flow rate
of the OWS. The court stated that under Section
311 (b)(6)(G), a court can not overturn a decision
imposing a civil penalty "unless there is not
substantial evidence in the record, taken as a
whole, to support the finding of a violation or
unless the Administrator's or the Secretary's
assessment of the penalty constitutes an abuse
of discretion." The court also stated that the
"substantial evidence" and "abuse of
discretion" standards mirror those in the APA
and should be interpreted in the same way. The
court noted that for it to find that there was not
"substantial evidence" in the record for the
Coast Guard to make its decision, it must find
that there was "no reasonable interpretation of
the evidence could justify it." In addressing the
"abuse of discretion" argument, the court stated that
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its review must be "highly deferential" to the Coast
Guard, and, although its inquiry into the facts must
be "searching and careful," it was "not empowered
to substitute its judgement" for that of the Coast
Guard. Based on these standards of review, the
court determined that the Coast Guard considered
the relevant evidence submitted by BP on the
applicability of Exemption C to the facts of the
discharge and simply rejected BP's position, based
largely on testimony that indicated that increased
flow rate caused the discharge into Curtis Bay, not
operator error. The court also found that the
Commandant's imposition of the $5,000 penalty
was not an abuse of discretion.
3. ALJ assesses a civil penalty of
$24,876 for violations of SPCC
requirements and oil discharge
prohibitions:
In the Matter of Pepperell Associates, 1999 EPA
ALJ LEXIS (Feb. 26, 1999).
EPA Region I filed a complaint that charged
Pepperell Associates with violations of the CWA §
311(j)(1) or, in the alternative, § 307(d). Count I of
the complaint charged that respondent operated a
facility regulated under the Oil Pollution Prevention
regulations, 40 C.F.R. Part 112, without a Spill
Prevention Control and Countermeasure Plan
(SPCC Plan) from December 1985 to July 14,1997.
Count II charged that respondent failed to prepare
an SPCC Plan from October 16, 1997 to April 16,
1998, and failed to implement the SPCC Plan within
six months of installing a new above-ground oil
storage tank on October 16, 1997. Count III
charged that respondent on October 17, 1996,
discharged oil into or upon a navigable water of the
U.S. in a quantity that was determined may be
harmful or, in the alternative, that respondent
discharged oil into a POTW in violation of a
Pretreatment Standard. An Order on the parties'
cross-motions for accelerated decision entered on
October 9, 1998 was incorporated by reference,
and any inconsistent findings were superseded by
the findings in this decision.
An oil spill on October 17, 1996 at respondent's
facility, Pepperell Mill, resulted in 350 to 400 gallons
of number six heating oil reaching Gully Brook and
Androscoggin River. Approximately 300 gallons
were recovered from Gully Brook and Androscoggin
River, while 50 to 100 gallons remained
unrecovered. As a result of the spill, 100 to 200
gallons reached the Lewiston Wastewater
Treatment Plant. The POTW, designed to treat
domestic waste, did not have the capacity to treat
industrial waste such as water contaminated with
number six heating oil. In order to maintain the
integrity of the treatment process, the POTW was
forced to decelerate severely its treatment process
while oil was removed from the incoming
wastewater, wet wells, and primary sedimentation
basins. No noticeable oil passed through the
POTW into the Androscoggin River.
The ALJ concluded that respondent violated the
CWA § 311(j)(1) and the implementing SPCC
regulations for the period from December 1985
to October 31,1996 for its failure to prepare and
implement an SPCC Plan. From November 1,
1996 to July 14, 1997, respondent's facility was not
subject to EPA jurisdiction because the
underground buried oil storage capacity of the
facility which could reasonably be expected to
discharge to navigable waters was 30,000 gallons,
which was below the jurisdictional threshold of
42,000 gallons. Thus, respondent was not liable for
such violations during that period. Since the facility
was not subject to EPA jurisdiction for SPCC
regulation purposes from November 1, 1996 to
October 16, 1997, when a new 20,000 gallon
above-ground oil tank was installed, respondent
was not required to prepare and implement an
amended SPCC Plan as opposed to a new SPCC
Plan during this period. Thus, respondent was not
liable for an SPCC Plan violation as alleged in
Count II of the complaint. The ALJ also concluded
that respondent violated the CWA § 311(b)(3) on
October 17,1996 by discharging oil into a navigable
water of the U.S. in a quantity that was determined
to be harmful.
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A civil administrative penalty of $15,385 was
assessed for respondent's violation of the CWA §
311(j)(1) and the implementing SPCC regulations
for failure to prepare and implement an SPCC Plan;
a penalty of $9,491 was assessed for respondent's
violation of § 311(b)(3) for its discharge of oil into
navigable water as alleged in Count III for a total
civil administrative penalty of $24,876.
II. Other Statutes
A. Oil Pollution Act (OPA)
1. Fourth Circuit holds that, under the
OPA, compensable removal costs
and damages are those that result
from the discharge of oil or
substantial threat of discharge into
navigable waters or adjacent
shorelines:
Gatlin Oil Company, Inc. v. U.S. DOT, 169 F.3d 207
(4th Cir. Mar. 2, 1999).
Gatlin Oil Company sought compensation from the
Oil Spill Liability Trust Fund for oil spill related
damages caused by vandals. Gatlin sought
$850,000 but the U.S. Coast Guard allowed only
$6,959. The District Court for the Eastern District
of North Carolina set aside the Coast Guard's
decision and remanded the case for further
consideration. The United States appealed the
district court's remand of the Coast Guard's
decision.
On appeal, the central issue was which damages
were compensable under § 2702 of the OPA.
Gatlin argued that it was entitled to costs that
resulted from the "incident," as that term is defined
in the OPA. The Coast Guard argued that only
costs and damages that result from any such
"incident" (i.e., the discharge or substantial threat of
discharge into navigable waters or adjacent
shorelines) were compensable. The court agreed,
and held that the compensable removal costs
and damages were those that resulted from the
discharge or substantial threat of discharge into
navigable waters or adjacent shorelines.
However, the court observed that Gatlin was
entitled to reasonable compensation, including full
compensation for removal costs the federal on-site
coordinator determined were consistent with the
N.P., and for cost resulting from actions he or she
directed. The court also noted that Gatlin was
entitled to compensation for loss of earnings and
earnings capacity caused by the need to comply
with directions. The court found that Gatlin was not
entitled to compensation for fire damage, because
there was no evidence that the fire caused or
threatened to cause the discharge of oil. Nor did
the court allow compensation for Gatlin complying
with directives from State officials, since such
actions were not ordered by the federal on-site
coordinator or determined to be consistent with the
N.P. The court found that Gatlin's costs of
assessing damages should have been
compensated provided these were reasonable, but
that Gatlin was not due interest because there was
no clear waiver of sovereign immunity for interest
under the OPA. The Fourth Circuit Court vacated
the district court's judgment, and remanded the
case for further proceedings.
2. District court holds that, in the case
of abandonment, the OPA provides
for liability of both previous and
current lessees/operators:
United States v. Bois D' Arc Operating Corp., 1999
U.S. Dist. LEXIS 3199 (E.D. La. Mar. 9, 1999).
Plaintiff United States sought the recovery of costs
on behalf of the oil spill liability trust fund from
defendant Bois D' Arc (BDA) for two discharges of
crude oil and petroleum from a capped but leaking
well and abandoned platforms located on land
leased by defendant. The United States sought
$95,331, and in this action, sought summary
judgment. The court observed that the well and
tank battery platform were off-shore facilities and
were located within defendant's lease area.
Therefore, the court found that defendant BDA was
a responsible party under the OPA. BDA argued
that the capped well and platform constituted an
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abandoned off-shore facilities, and that the OPA,
under 33 U.S.C. § 2701 (32)(F), provides that in the
case of abandonment, the responsible parties
immediately prior to abandonment remain the
responsible parties. The court viewed this
argument as asserting that Section (C) (which
defines responsible party for off-shore facilities) and
Section (F) (which defines responsible party in the
case of abandonment) are mutually exclusive. The
court disagreed. Based on the language of the
OPA, the legislative history of the Act, and
Congresses desire in passing the Act to expand
government oversight of cleanups, the court
found that Section (F) "expands, rather than
contracts, the definition of responsible party."
Based on this finding, the court held that BDA was
a responsible party under the OPA. BDA also
argued that the U.S. Coast Guard did not comply
with the N.P. in responding to the spill by plugging
the well, but the court again disagreed. The court
granted the United States' motion for summary
judgment.
B. Emergency Planning and Community
Right-To-Know Act (EPCRA)
1. EAB finds that use of EPA self-
disclosure settlement policy in
litigation was inappropriate, but
affirms civil penalty amount
calculated based on policy due to
concerns regarding fairness:
In re: Bollman Hat Company, 1999 EPA App.
LEXIS 4 (Feb. 11, 1999).
EPA appealed an initial decision that addressed the
proper civil penalty for seven violations of EPCRA
(i.e., failing to file toxic chemical release forms for
several chemicals over several years). The central
issue on appeal arose out of the EPA Region Ill's
use of the self-disclosure policy—a settlement
policy—to calculate the penalty reductions for
respondent's self-disclosure of the violations. In the
original complaint, EPA proposed a civil penalty of
$39,716. The ALJ applied the self-disclosure policy
and concluded that respondent had satisfied all
nine of the criteria needed to obtain a complete
waiver of the gravity-based penalty and granted a
waiver of 100 percent of the gravity-based penalty.
Based on this finding, the ALJ imposed a penalty of
$8,166.
On appeal, Region III argued that the ALJ erred in
applying the self-disclosure policy to reduce the civil
penalty for counts I-V to $0. Alternatively, the
Region argued that even if the self-disclosure policy
was property applied, the facts did not support
reduction in the penalty beyond that given in the
complaint. Lastly, the Region maintained that ALJ
erred in sanctioning the Region through a penalty
reduction of 25 percent for counts VI and VII
because the Region had denied respondent a due
process right to litigate the use of the self-
disclosure policy. Respondent opposed each of the
grounds for appeal.
The EAB observed that the Region was correct
that the self-disclosure policy should not have
been applied to a litigated penalty assessment
and that such use was inconsistent with the
express terms of the policy. The EAB observed
that such application did not promote consistency
and was a disincentive for settlement. The EAB
stated that "to sustain the Region's appeal, we
would be required to find that it was clear error for
the Presiding Officer to have relied upon the
Region's own misreading, misapplication, and
misinterpretation of the Self-Disclosure Policy. We
do not believe that this finding would be justified,
particularly where the Region was unwilling to admit
in its post-hearing brief that its use of the self-
disclosure policy in this litigation was clear error."
The EAB thus found, that although the ALJ's
reliance on the policy was not unreasonable,
because it did not want to promote further improper
application, the EAB declined to adopt the ALJ's
penalty rationale. The EAB deemed the penalty
amount calculated by the ALJ appropriate and fair,
and stated that although respondent had not been
denied due process, Region Ill's failure to disclose
use of the settlement policy was unfair and
inappropriate.
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2. EAB holds that "justice" penalty
adjustment factor may only be
applied to recognize environmentally
beneficial projects when other
penalty adjustment factors are
insufficient or inappropriate to
achieve fair and just result:
In re: Catalina Yachts, Inc., 1999 EPA App. LEXIS
7 (March 24, 1999).
The U.S. EPA Region IX and Catalina Yachts
appealed the assessment of a $39,792 civil penalty
for seven violations of EPCRA § 313 reporting
requirements. The Region had sought $175,000.
The ALJ had reduced the gravity-based penalty
amount (calculated by the ALJ to be $173,274)
based on Catalina's "attitude" (reduction of
$51,982) the delisting of one chemical of concern
(acetone) (reduction of $12,500), and in
consideration of "other matters as justice may
require" (reduction of $69,000). The adjustment for
the "justice" factor was based on environmentally
beneficial activities undertaken by Catalina.
On appeal, Catalina argued that the ALJ erred
because he rigidly applied EPA's penalty policy, did
not fully account for the statutory penalty factors,
and improperly limited credit for the environmentally
beneficial projects. EPA argued that the ALJ erred
because there was inadequate support for
downward adjustments for the "cooperation" and
"compliance" components of the "attitude" factor;
and the adjustments for environmentally beneficial
projects were not factually supported in the record
and were inconsistent with the EAB decision in In.
re Spang & Co.. 6 E.A.D. 226 (EAB 1995).
The EAB found no error with regard to the ALJ's
use of the penalty policy or consideration of the
statutory penalty factors. The EAB found that the
ALJ had not applied the ERP as a rule, but rather
had used both the ERP and the statutory factors
listed in TSCA § 16 to calculate the penalty, and
had in fact made adjustments based on the
statutory factors not contemplated in the ERP.
In examining application of the statutory penalty
factors, the EAB found that the ALJ's application of
the penalty policy provided an adequate basis for
the gravity-based penalty. In addition, the Board
found no error in the ALJs refusal to consider the
fact that Catalina submitted chemical use data to
local agencies and that Catalina had conducted
public outreach. The EAB also upheld the delisting
adjustment, having found no basis for Catalina's
desired 80 percent reduction of the gravity-based
penalty for the acetone violations. With regard to
adjustment factors, the EAB focused its discussion
on "attitude" and "other matters as justice may
require." With regard to attitude, the EAB upheld
the 30 percent downward adjustment imposed by
the ALJ. The EAB found that the record supported
the ALJ's finding that Catalina had been
cooperative in most respects. The EAB observed
that cooperation during settlement was just one
aspect that should be considered in determining
whether an adjustment for cooperation should be
granted. As for compliance, the EAB similarly
found the record supported the ALJ's adjustment.
Finally, with respect to the ALJ's reduction for
Catalina's environmentally beneficial projects,
the EAB found it was error for the ALJ to have
reduced the penalty based on these projects.
The EAB cited Spang for the proposition that
"use of the justice factor should be far from
routine, since application of the other
adjustment factors normally produces a penalty
that is fair and just." The Board continued, " [i]f,
and only if, despite application of the other
adjustment factors, an assessed penalty is so
disproportionate to the violations at issue as to be
manifestly unjust, should a presiding officer apply
the justice factors to recognize environmentally
beneficial projects." The Board found that here,
because Catalina had received the full benefit of
the "attitude" adjustment factor, as well as a
significant adjustment for the delisting of
acetone, it believed the resulting penalty of
$108,792 was fair and just. The EAB reversed the
ALJ $69,000 downward penalty adjustment for
"other matters as justice may require" and ordered
Catalina to pay a civil penalty of $108,792.
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The EAB observed in a footnote that it questioned
whether two of three projects qualified as
environmentally beneficial projects. In one case, it
was not clear that the project affected either
acetone or styrene, the chemicals that triggered the
underlying violations. In the other, the costs and
benefits of the project were largely speculative.
The EAB observed that the ALJ had improperly
considered the prospective costs and benefits of a
program that had been in place only four months
and covered only 30 percent of Catalina's gel
coating activities.
C. Clean Air Act (CAA)
1. D.C. Circuit remands revised
NAAQSs for participate matter and
ozone based on unconstitutional
delegation of legislative authority:
American Trucking Ass'nv. U.S. EPA, No. 97-1441
(D.C. Cir. 1999).
Petitioners challenged numerous aspects of the
final revised primary and secondary National
Ambient Air Quality Standards (NAAQS) for
particulate matter (PM) and ozone, which had been
promulgated during July 1997. 62 Fed. Reg.
38,652 (1997) and 62 Fed. Reg. 38,856 (1997),
respectively. This summary focuses only on three
of the issues raised by petitioners: that EPA's
construction of §§ 108 and 109 of the CAA
constituted an unconstitutional delegation of
legislative power; that the NAAQS revisions violated
the Unfunded Mandates Reform Act (UMRA); and
that the NAAQS revisions violated the Regulatory
Flexibility Act (RFA).
Petitioners asserted that with regard to both the
PM and the ozone rules, EPA had construed §§
108 and 109 of the CAA "so loosely as to render
them unconstitutional delegations of legislative
power." The court agreed and remanded the
regulations to EPA for further consideration.
(The court did not vacate the new ozone standards
because the court found they could not be enforced
under CAA § 181(a). Ultimately, based on issues
not discussed here, the court vacated the coarse
PM standards, and it invited briefing on the remedy
for the fine PM standard). The court observed that
§ 109(b)(1) of the CAA provides that EPA must
establish the PM and ozone NAAQSs at a level
"requisite to protect the public health" with an
"adequate margin of safety." The court then
found, that although the criteria used by EPA in
assessing health effects for purposes of setting
the NAAQSs for these non-threshold pollutants
were sufficient (i.e., they focused the inquiry on
the pollutants' effects on public health), no
intelligible principle for distinguishing
acceptable levels from unacceptable levels had
been derived by EPA from the CAA. The court
observed that, in effect, EPA had merely
established that less stringent NAAQS levels would
allow greater harm and more stringent levels would
allow less harm, without articulating or establishing
a rationale for why the selected level satisfied the
statutory standard. The court stated that EPA
"[l]acked determinate criteria for drawing lines" and
that the Agency had "[fjailed to state intelligibly how
much is too much."
The court discounted the fact that the NAAQSs
were recommended by the Clean Air FACA
because the court concluded the FACA's
recommendations lacked a sufficiently specific
basis. The court observed that "the question
whether EPA acted pursuant to lawfully delegated
authority is not a scientific one." The court also
rejected EPA's argument that the NAAQSs were set
slightly higher than background for the two
pollutants, since EPA had "not explicitly adopted"
this rationale. Additionally, the court rejected EPA's
argument that the Agency had not adopted a lower
standard because of the greater uncertainty that
health effects exist at such lower levels. The court
stated that "the increasing uncertainty argument is
helpful only if some principle reveals how much is
too much." Here, the court stated, "[n]one does."
The court indicated that here EPA had claimed
broader latitude than OSHA asserted in
International Union, UAW, v. OSHA,
("Lockout/Tagoutl")938F.2d1310,1317 (D.C. Cir.
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1991) (Regulations remanded to OSHA for a more
precise definition of § 3(8) of the Occupation Safety
and Health Act). The court found that EPA's
approach could justify the selection of any standard,
and was, thus, too unconstrained. The court added
that here, because the standards in question affect
"the whole economy," a more precise delegation
that at issue in Lockout/Tagout I is required. The
court also distinguished cases cited by EPA that
supported the proposition that when there is
uncertainty about the health effects of a pollutant
within a particular range, EPA may make policy
judgments to establish appropriate standards within
that range. The court found such cases were not
controlling because they did not involve a claim of
undue delegation. The court also distinguished
South Terminal Corp., v. EPA, 504 F.2d 646 (1st
Cir. 1974) (rejecting nondelegation challenge
regarding EPA's adoption of a plan for preventing
violations of Boston's NAAQSs), since the NAAQSs
were already established and served as the goals
against which the means of compliance (i.e., the
plan) could be assessed.
The dissent by Justice Tatel argued that the court
had ignored the last 50 years of Supreme Court
non-delegation jurisprudence, § 109's delegation
was "narrower and more principled" than other
delegations upheld by the Supreme Court and this
court, and the record demonstrated that EPA
discretion was properly limited by § 109 in
developing the NAAQSs. Judge Tatel identified at
least six Supreme Court decisions that upheld
delegations of authority similar to § 109 (e.g., "to
regulate broadcast licensing in 'the public interest',"
"to fix 'fair and equitable' commodity prices," and "to
regulate new drugs that pose an 'imminent hazard
to public safety'.") He also observed that,
consistent with these Supreme Court decisions, the
First Circuit had rejected a similar nondelegation
challenge to the CAA's "requisite to protect the
public health" language. South Terminal Corp., v.
EPA. 504 F.2d 646 (1st Cir. 1974). Judge Tatel
added that he disagreed that the decision in
Lockout/Tagout I required a different result. He
viewed the standard in § 109 of the CAA as more
precise than the standard in Lockout/Tagout I.
Finally, he stated and articulated why EPA had
adhered to a "disciplined decisionmaking process
constrained by the statute's directive to set
standard 'requisite to protect public health' based
on criteria reflecting the 'latest scientific
knowledge'." Judge Tatel distinguished the issue of
nondelegation from that of EPA having promulgated
an arbitrary and capricious standard, and allowed
that the concerns raised by the court may be better
viewed under the latter theory. With regard to
nondelegation, however, Judge Tatel stated that"
the Constitution requires that Congress articulate
intelligible principles." He concluded that "Congress
has done so here."
With regard to UMRA claim, petitioners asserted
that EPA was required to prepare a Regulatory
Impact Statement (RIS) when it set the NAAQSs.
They also argued that EPA's failure to develop a
RIS rendered the NAAQSs arbitrary and capricious.
The court rejected both of these arguments. The
court found that even if EPA failed to prepare a
RIS, UMRA did not provide a basis for staying,
enjoining, or invalidating an agency rule based
on such failure. In addition, the court observed
that a RIS would only contain information on the
costs of implementation, and given that EPA was
precluded from considering costs in setting the
NAAQSs, no information in a RIS could have
rendered the NAAQSs arbitrary and capricious.
Petitioners also asserted that EPA improperly
certified that the revised NAAQSs would not have a
significant impact on a substantial number of small
entities, in violation of the RFA. The court rejected
this argument as well, finding that the revised
NAAQSs did not regulate small entities directly.
Rather, the court observed that it is the States that
regulate small entities through SIPs. (See, Mid-Tex
Elec. Coop.. Inc. v. FERC. 773 F.2d 327, 342 (D.C.
Cir. 1985). The court concluded that EPA's
certification was not improper.
D. Surface Mining Control and Reclamation
Act (SMCRA)
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Issue 16
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1. Court of Federal Claims holds that
Secretary of Interior's denial of a
surface mining permit does not
result in a compensable taking
where mining activity would be
enjoinable as public nuisance under
State law:
Rith Energy, Inc. v. United States, 1999 U.S.
Claims LEXIS 146 (BNA) 1951 (June 25, 1999).
This takings case arose from the denial of a surface
mining permit by the Department of Interior's Office
of Surface Mining Reclamation and Enforcement
(OSM). The plaintiff, Rith Energy, was the
prospective permittee. Pursuant to SMCRA
requirements, before proceeding with mining
operations, Rith applied to OSM for a surface-
mining permit. As part of its application, Rith
obtained soil samples to determine the level of
toxicity of the soil to be mined and prepared a Toxic
Materials Handling Plan explaining how it would
treat overburden that exhibited a potential to cause
acid mine drainage to an underlying aquifer. Based
on the results of the soil samples and the
sufficiency of the plan, OSM found that Rith's
operations were expected to produce little or no
adverse change in the prevailing hydrologic balance
and issued Rith a permit. In response to
complaints, OSM resampled the overburden in
Rith's permit area and found substantially more
environmental risk from the operation than
demonstrated by the sampling submitted Rith's
permit application. Accordingly, OSM suspended
Rith's permit pending submission of a new handling
plan. While the re-permitting process was
proceeding, Rith received approval to mine another
portion of it lease areas until ultimately OSM
ordered Rith to cease all mining operations. Rith
then submitted a series of handling plans to OSM,
each of which was rejected, and OSM ultimately
denied Rith's final attempt to obtain a permit
revision.
After a series of administrative appeals and judicial
challenges and appeals, the Court of Federal
Claims addressed Rith's claims that OSM's permit
denials constituted a compensable taking. The
court stated that in general, regulatory takings
cases involve a three part "fairness inquiry." Citing
Penn Central Transp. Co. v. New York City, 438
U.S. 104, 57 L.Ed. 2d 631, 98 S. Ct. 2646 (1978),
the court noted that under this inquiry, a court must
examine the character of the government action
that gave rise to the claimed loss, the extent to
which that action interfered with the owner's
reasonable investment backed expectations, and
the extent of the economic harm occasioned by the
government's actions. The court, citing Lucas v
South Carolina Coastal Council. 505 U.S. 1003,
120 L.Ed. 2d 798, 112 S. Ct. 2886 (1992), then
noted that an alleged regulatory taking that
restrains an owner from the beneficial uses of
his property, even a restraint that bars all such
use, cannot be the basis of a compensable
taking where the restraint that is imposed is
grounded "in the restrictions that background
principles of the State's law of property and
nuisance already in place upon land
ownership."
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Issue 16
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Based on this rule, the court examined whether
OSM's denial of Rith's mining permit by federal
officials acting under the authority of SMRCA
paralleled a result that could have been achieved
under Tennessee nuisance law. The court noted
that if it found that Tennessee nuisance law would
allow the issuance of an injunction restraining Rith
from proceeding with a surface mining operation
given a finding that, because of the inadequate
handling plans, there would be a high probability of
acid drainage to the drinking water aquifer, which
was the basis for the permit denial, there could be
no compensable taking.
The court found that under the Tennessee Water
Quality Control Act, Rith would not be issued a
permit and was subject to injunctive action for the
adverse impact of its operations on the State
waters. The court stated that OSM's denial of a
mining permit because of the high probability of
acid mine drainage into the aquifer "represented a
exercise of regulatory authority indistinguishable in
purpose and result from that which plaintiff was
always subject under Tennessee nuisance law."
Because Rith's conduct would constitute an
enjoinable nuisance under State law, the court
concluded that no compensable taking had
occurred.
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Issue 16 Water Enforcement Division September 1999
INDEX OF CASES
American Canoe Ass'n v. U.S. EPA, 30 F. Supp. 2d 908 (Dec. 18, 1998) 7
American Trucking Ass'n v. U.S. EPA, No. 97-1441 (D.C. Cir. 1999) 45
Amigos Bravos v. Molycorp, 1998 U.S. App. Lexis 28567 (10th Cir. 1998) 11
BP Exploration & Oil. Inc. v. U.S. DOT and USCG. 44 F. Supp. 2d 34 (D.D.C. 1999) 40
Bragg v. Robertson. 1999 U.S. Dist. LEXIS 9254, 48 ERC (BNA) 1913 17
Community Ass'n for Restoration of the Env't v. Sid Koopman Dairy: 1999 U.S. Dist. LEXIS
8348 (E.D. Wash., May 17, 1999) 5
Forest Properties, Inc. v. United States, 177 F.3d 1360 (May 18, 1999) 12
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107;(4th Cir. 1999) 20
Gatlin Oil Company. Inc. v. U.S. DOT. 169 F.3d 207 (4th Cir. Mar. 2, 1999) 42
GMCv. U.S. EPA. 168 F.3d 1377 (D.C. Cir. March 23, 1999) 28
Harold Wright v. Lance Dunbar et al.. Civ. No. 97-00137 HG (Hawaii, April 27, 1999) 19
Home Builders Ass'n of Greater Chicago v. USAGE, et al., 1999 U.S. Dist. LEXIS 9453
(N.D. II, June 15, 1999) 16
In re: Bollman Hat Company. 1999 EPA App. LEXIS 4 (Feb. 11, 1999) 43
In re: Britton Construction Co., BIC Investments, Inc., and William and Mary Hammond,
1999 EPA App. LEXIS 9 (Mar. 30, 1999) 32
In re: Catalina Yachts. Inc.. 1999 EPA App. LEXIS 7 (March 24, 1999) 44
In the Matter ofPepperell Associates, 1999 EPA ALJ LEXIS (Feb. 26, 1999) 41
Jones v. City of Lakeland. 175 F.4d 410 (6th Cir. April 20, 1999) 22
Long Island Soundkeeper Fund, Inc. v. New York City Dep't of Envtl. Protection, 27 F.
Supp. 2d 380 (E.D.N.Y., Nov. 23, 1998) 23
Mamo v. Galiher. 28 F. Supp. 2d 1258 (Dist. Ct. Haw., Nov. 25, 1998) 11
Natural Resources Defense Council v. Southwest Marine, 39 F. Supp. 24 1235
(S.D. Cal. Jan. 27, 1999) 21
Natural Resources Defense Council v. Fox, 30 F. Supp. 2d 369 (S.D.N.Y. Nov. 12, 1998) 6
Northern California River Watch v. Sonoma County Water Agency, 1998 U.S. Dist.
Lexis 19921 (9th Cir., Dec.17, 1998) 22
Old Timer, Inc. v. Black-Hawk Central Sanitation District, et al., 1999 U.S. Dist. Lexis 9366 24
Palm Beach Isles Ass'n v. United States, 42 Fed. Cl. 340 (Oct. 19, 1998) 14
49
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Issue 16
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September 1999
Patterson Farm, Inc. v. City of Britton, 22 F. Supp. 2d 1085 (D. S.D. Sept. 29, 1998) 2
Piney Run Preservation Ass'n v. County Comm'rs of Carroll County, 50 F. Supp. 2d 443
(D. Maryland, May 20, 1999) 26
Rith Energy. Inc. v. United States. 1999 U.S. Claims LEXIS 146 (BNA) 1951 (June 25, 1999) 47
Smith v. Hankinson. 1999 U.S. Dist. LEXIS 5151 (S.D. Ala. Mar. 31, 1999) 28
Stone v. Naperville Park District, 38 F. Supp. 2d 651 (N.D. II. Feb. 17, 1999) 4
Texas Oil & Gas Ass'n v. U.S. EPA. 161 F.3d 923 (5th Cir. Dec. 17, 1998) 9
United States v. Acadia Woods, Civ. Action No. 6:98-0687 (W.D. La., Mar. 22, 1999) 29
United States v. Bay-Houston Towing Co., 33 F. Supp. 2d 596 (E.D. Mich. Jan. 14, 1999) 15
United States v. Bois D' Arc Operating Corp., 1999 U.S. Dist. LEXIS 3199 (E.D. La. Mar. 9, 1999) . . 43
United States v. Cooper, No. 97-50296 (9th Cir. Apr. 9, 1999) 36
United States v. Gulf States Steel. Inc.. 1999 U.S. Dist. LEXIS 8834 (N.D. Ala. June 8, 1999) 6, 30
United States v. Hartz Construction Co., Inc., 1999 U.S. Dist. LEXIS 9126 (N.D. II. June 14, 1999) 3, 19
United States v. Iverson, 162 F.3d 1015 (9th Cir. Dec. 11, 1998) 35
United States v. Johnson, et al., 1999 U.S. Dist LEXIS 9432 (June 18, 1999) 37
United States v. Krilich. 1999 U.S. Dist. LEXIS 4191 (N.D. II. Mar. 24, 1999) 1,16
United States v. M/G Transport Services, Inc., 173 F.3d 584 (6th Cir. April 22, 1999) 34
United States v. Mobil Exploration and Production. Co., Case No. 2:98-CV-0220S
(May 27, 1999, D. Utah) 39
United States v. Superior Block & Supply Co., 1999 U.S. App. LEXIS 14013
(2nd Cir. June 22, 1999) 33
United States v. Texaco Exploration & Production Co., Case No. 2:98-CV-0213S
(May 27, 1999, D. Utah) 39
United States v.TGR Corp.. No. 171 F.3d 762 (2nd Cir. Mar. 26, 1999) 1
United States v. United Homes. 1999 U.S. Dist. LEXIS 2354 (N.D. II. Feb. 24, 1999) 14
Western Carolina Regional Sewer Authority v. South Carolina Department of Health and
Environmental Control, No. 98-ALJ-07-0267-CC (June 21, 1999) 9
50
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