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United States v. Cargill, Inc.

ELR Citation: 11 ELR 20649
Nos. No. 80-135, 508 F. Supp. 734/15 ERC 1761/(D. Del., 02/12/1981)

The court rules that the federal government may enforce the terms of a national pollutant discharge elimination system (NPDES) permit while a state action is pending to enforce the same permit, but the court issues a conditional stay of the federal action due to exceptional circumstances. The Delaware Department of Natural Resources and Environmental Control (DNREC), pursuant to the Federal Water Pollution Control Act (FWPCA) and state regulations, had reissued an NPDES permit to Cargill requiring the installation of new pollution control equipment. Because of odor and wastewater treatment system problems, the DNREC sued Cargill for violations of the permit but finally reached a comprehensive settlement agreement. The Environmental Protection Agency (EPA) then filed suit to enforce the terms of the permit and to impose civil penalties because penalties imposed by the state were too lax. The court rejects Cargill's request for a stay of the EPA suit on grounds of abstention, which applies only in narrowly defined circumstances not present here. The court finds that (1) there is no constitutional issue that would be mooted by a state court determination of pertinent state law, (2) the exercise of federal jurisdiction will not substantially interfere with Delaware's efforts of enforce purely state regulations, and (3) federal jurisdiction is not sought to restrain state criminal or nuisance proceedings. Although the FWPCA authorizes states to regulate and enforce the NPDES program, the Act allows for federal enforcement where the state enforcement action is inappropriate. The court thus finds that EPA's enforcement proceeding is proper. However, EPA's suit has brought Cargill's construction efforts, agreed to in the settlement, to a halt and is thus thwarting the principal goal of the FWPCA to prevent water pollution. Due to this exceptional circumstance and for other reasons, the court grants a partial stay requiring plaintiff to submit a construction schedule and 60-day progress reports but allows EPA to seek civil penalties if appropriate at a later date.

Counsel for Plaintiff
James W. Garvin Jr., U.S. Attorney; Peggy Ableman, Ass't U.S. Attorney
5001 New Fed. Bldg., 844 King St., Wilmington DE 19801
(302) 573-6277

James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Robert L. Bragar
Office of Water Enforcement
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Defendant
F. Michael Parkowski, John W. Noble
Parkowski, Noble & Guerke
116 W. Water St., Dover DE 19901
(302) 678-3262