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Friends of the Earth v. Chevron Chem. Co.

ELR Citation: 26 ELR 20296
Nos. Nos. 1:94:CV434, -580, 900 F. Supp. 67/41 ERC 1836/(E.D. Tex., 09/01/1995) Summary judgment rulings

The court holds that an environmental group has standing to pursue civil penalties under the Federal Water Pollution Control Act (FWPCA) for a plant owner's alleged violation of one parameter of its national pollutant discharge elimination system permit, but that the group may not seek civil penalties for alleged violations of other permit parameters that were not then being violated. The court first holds that the group's injunctive relief claim is not moot, because the owner failed to demonstrate that it was absolutely clear that additional total suspended solids (TSS) violations could not reasonably be expected to occur. The court next holds that the group has constitutional standing to bring this suit. The claims of the group affiants of diminished recreational activity, diminished aesthetic beauty, and pollution-contaminated seafood constitute claims of actual or threatened harm. Also, the harm is fairly traceable to the owner's permit violations, because the owner has had exceedances of several parameters of its permit, its discharges could adversely affect the waterways about which the group is interested even though the discharges are not made directly into those waterways, and the discharges can cause or contribute to pollution in the waterways in which the group is concerned. Further, the group's injuries are likely to be redressed by a favorable decision in this action. The court next holds that the group's notice letters were sufficient to allow the group to pursue civil penalties for all alleged biochemical oxygen demand (BOD), chemical oxygen demand (COD), pH, TSS, copper, and zinc violations, but insufficient to pursue civil penalties for the owner's temperature exceedances because the group has neither given notice of defendant's temperature exceedances nor included any specific allegations of temperature exceedances in any past notice letter. The court holds that the owner is entitled to summary judgment on the group's zinc and copper claims. Those parameters are not enforceable in a citizen suit, because the zinc and copper restrictions were contested through the request for an evidentiary hearing. The court next holds that the group only has standing under the FWPCA to seek civil penalties for the owner's TSS exceedances. A plaintiff will only have standing to seek civil penalties for those permit parameters that were at risk of being violated at the time of filingsuit. The group's allegations of continuous or intermittent violation of the owner's permitted BOD and COD limits and monitoring requirements do not raise genuine issues of material fact.

Counsel for Plaintiff
Bruce J. Terris, Carolyn S. Pravlik
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
James E. Smith
Beirne, Maynard & Parsons
First Interstate Tower
1300 Post Oak Blvd., 24th Fl., Houston TX 77056
(713) 623-0887