United States v. Amoco Oil Co.
Citation: 14 ELR 20533
No. No. 80-0801-CV-W-O, 580 F. Supp. 1042/20 ERC 1666/(W.D. Mo., 01/03/1984)
The court rules that a national pollutant discharge elimination system (NPDES) permit that calls for monthly or quarterly average discharge data is enforceable even though Federal Water Pollution Control Act (FWPCA) § 309 measures penalties for violations in daily increments and Environmental Protection Agency (EPA) regulations require daily maximum limits. The court first declines defendant's motion for summary judgment on the government's claim of discharges in excess of permit limitations at Outfall #001, ruling that the failure of defendant's NPDES permit to specify maximum daily limits does not render the permit unenforceable even though § 309 speaks of penalties "per day" of violation. The language of the statute, the broad discretion given EPA by the FWPCA, and a reading of the cases, lead to the conclusion that a violation may be measured in terms other than a day. If a longer term, for example a monthly average, is used for penalty purposes, the violation consists of the number of days covered by the violation period.
Turning to defendant's summary judgment motion concerning claims of permit violations at Outfall #003, the court holds that the government's charge in oral argument that defendant wrongly failed to apply for a new permit after modifying its operations is outside the pleadings and need not be addressed. However, the government has also charged that defendant discharged pollutants at levels above permit limits for 1,379 days. The court holds that four days of monitoring data create a sufficient inference of a violation for the entire period to withstand the motion.
The court denies plaintiff's motion for summary judgment concerning alleged violations at Outfall #001, ruling that there is an issue of fact as to whether the period over which the monitoring data should be averaged to determine compliance with the permit is monthly or quarterly. The court rejects defenses based on plaintiff's failure to commence an enforcement action until four years after the permit violations began, ruling that the government is immune to laches, cannot be estopped in the absence of affirmative misconduct, and cannot waive its right to enforce laws protecting the public. The government's lax enforcement and any evidence of good faith on defendant's part can only be considered in setting penalties. In addition, the court rules that the permit's failure to specify maximum daily limits, though a violation of EPA regulations, does not render the limitations it did specify unenforceable.
Finally, the court rejects plaintiff's motion for summary judgment concerning alleged violations at Outfall #003 over a period of 1,379 days. Plaintiff's evidence of a process change routing unpermitted pollutants to the outfall during the period, combined with monitored proof of discharges of such pollutants on four days during the period defeats defendant's motion. The court declines, however, to grant plaintiff's motion for summary judgment on this evidence.
Counsel for Plaintiff
Mark Zimmerman, Ass't U.S. Attorney
549 U.S. Cthse., 811 Grand Ave., Kansas City MO 64106
Counsel for Defendant
Joseph J. Kelly Jr.
Spencer, Fane, Britt & Browne
1000 Power & Light Bldg., 106 W. 14th St., Kansas City MO 64105