Natural Resources Defense Council v. Outboard Marine Corp.
Citation: 19 ELR 20279
No. No. 87C 4648, 692 F. Supp. 801/28 ERC 1025/(N.D. Ill., 07/12/1988) Summary judgment on liability
The court holds that plaintiffs have satisfied the prerequisites for bringing a citizen suit under § 505 of the Federal Water Pollution Control Act, and that defendant is liable for certain violations of its National Pollutant Discharge Elimination System (NPDES) permit. The court first holds that plaintiff has standing to bring this action on behalf of its members. Plaintiff has shown that identified members use the waters into which defendant's discharges flow, and that pollution of those waters harms their aesthetic and environmental interests. Plaintiff need not prove that its members are harmed specifically by defendant's discharges. If defendant has violated its NPDES permit, it has injured those using the affected waters, and injunction of the violation will redress the injury. The court also holds that plaintiff's standing is not vitiated by its failure to notify its members of the violations until after filing its complaint. The injury, and thus standing, existed at the time of filing.
The court next holds that the fact that the defendant is appealing its permit and a permit modification request to a state agency does not give that agency primary jurisdiction requiring the court to dismiss the case. The case does not encroach on the agency's area of expertise; it merely seeks to enforce the permit standards previously set by the agency. The court also holds that abstention is unnecessary. Its decision enforcing the permit will not interfere with a coherent state policy, even though it may be inconsistent with the state agency's future decision on permit modification. The defendant's administrative appeal also does not stay the permit requirements, so the court must enforce those requirements regardless of the possibility that the state agency may retroactively modify them. Defendant's permit appeal also is not a parallel state judicial enforcement proceeding warranting federal abstention.
The court next holds that it has jurisdiction because plaintiff has, in good faith, alleged continuous or intermittent violations, as required by Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 18 ELR 20142. Defendant's administrative appeal of its permit modification request does not stay the permit requirements because it is a modification request, not a permit appeal. Defendant's permit requirements, and its alleged violations of those requirements, were thus ongoing when plaintiff filed its complaint. The court also holds that plaintiff has adequately alleged intermittent violations under Gwaltney, even though there may only have been three violations in three years. The key to alleging intermittent violations is not any particular frequency or severity of violation, but a defendant's failure to act to prevent future recurrence.
The court next holds that § 505 does not violate the constitutional doctrine of separation of powers. That doctrine applies as between branches of government; it does not prevent Congress from authorizing private actors to perform certain functions also performed by the executive branch. The court also holds that § 505 does not impermissibly deny federal and state agencies sole enforcement discretion; Congress considered strict enforcement more important than that discretion.
Turning to the merits, the court holds that defendant's permit set an enforceable limit on its discharge of polychlorinated biphenyls (PCBs). A related permit condition did not modify that limit, but merely entitled defendant to seek modification if it could not achieve the limit. The court holds that there is an issue of material fact as to whether defendant violated the limit. Defendant's monitoring results, on which plaintiff bases its claims of violation, are as accurate as technology allows, but not accurate enough to prove violation as a matter of law. The court next holds that when a single sample is taken in a month, it counts as two violations if it violates both the daily and the monthly permit limits. The court holds defendant strictly liable for violations of its permit limitations on total suspended solids and pH. Defendant's arguments that it is not responsible for some of the solids in its discharge are not relevant; it should have raised them in a permit appeal. Finally, the court holds that injunctive relief is appropriate on a summary judgment motion, and enjoins further violations of the solids and pH limitations.
Counsel for Plaintiff
James F. Simon, Nora J. Chorover
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
Counsel for Defendant
Richard J. Kissel, Erica L. Dolgin
Gardner, Carton & Douglas
Quaker Tower, Ste. 3400, 321 N. Clark St., Chicago IL 60610-4795