Chesapeake Bay Found. v. Bethlehem Steel Corp.
Citation: 17 ELR 20623
No. No. Y-84-1620, 652 F. Supp. 620/25 ERC 1684/(D. Md., 01/30/1987) Motion to dismiss, motion for summary judgment
The court rules that the Federal Water Pollution Control Act's (FWPCA's) citizen suit provisions are constitutional, the provisions are satisfied if notice is provided to the government of some of the violations to be alleged and the remaining violations are similar, and continuous permit violations over a three-month period do not qualify for the upset defense. Turning first to the constitutionality of the FWPCA citizen suit provisions, the court distinguishes this case from situations dealing with separation of powers among coordinate branches of government, rather than between private parties and the executive branch. The court holds that citizen suits do not unduly interfere with executive enforcement of the FWPCA, since federal and state agencies retain primary enforcement responsibility and the federal executive branch does not believe the citizen suit provisions intrude on its authority. Executive discretion is not interfered with, since the Environmental Protection Agency may intervene in the citizen suit. The court notes that in establishing statutory obligations Congress may determine how they will be enforced.
The court holds that an affidavit submitted by plaintiff is admissible under Federal Rule of Civil Procedure 56(e) despite certain technical deficiencies. The court also finds that insufficient evidence is before it to determine FWPCA permit limitations after October 10, 1985. The court rules that an amended complaint filed on June 5, 1986, relates back for statutes of limitations purposes to the original complaint, because the new violations alleged are merely additional allegations of the same FWPCA violations originally charged.
The court holds the citizen suit satisfied the notice provision of FWPCA §505. Although new notice to the government was not provided for the allegations added to the amended complaint, these are similar to the allegations for which notice to the government was originally provided. Next, the court holds that res judicata does not bar a citizen suit under the FWPCA for violations which had been subject to penalties in an earlier consent decree between Maryland and the defendant, because those violations were not actually adjudicated by the decree. Similarly, a consent decree covering the same general time frame but different dates within that time does not bar a citizen suit. The court requests additional briefs on whether a consent decree bars a citizen suit charging precisely the same violations. The court rules that a state enforcement proceeding initiated after the citizen suit was filed does not bar the citizen suit.
The court finds that permit violations occurring nearly every day over a three-month period are not "exceptional" or "temporary" and thus do not qualify for the upset defense. The bypass defense is not available to defendants either, since defendant's state-issued permit specifically limits its applicability. The court holds that although inaccurate monitoring is not a defense to permit violations, errors in the testing procedure itself may be a defense, and defendant has raised sufficient evidence regarding the testing procedure it used for measuring phenol levels to preclude summary judgment for violations of the permit's phenol limitations. The court also holds that plaintiffs are not estopped from bringing their action by the state's monitoring of defendant's activities. Citizen suits are not barred by a government decision not to prosecute, only a government decision to prosecute. The court requests further briefs on whether impossibility is a defense to an FWPCA permit violation.
Counsel for Plaintiffs
Natural Resources Defense Council
122 E. 42nd St., New York NY 10168
Counsel for Defendant
Venable, Baetjer & Howard
1800 Mercantile Bk. & Trust Bldg., 2 Hopkins Plaza, Baltimore MD 21201