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Culbertson v. Coats Am., Inc.

ELR Citation: 26 ELR 20875
Nos. No. 94-CV-135-WCO, 913 F. Supp. 1572/42 ERC 1162/(N.D. Ga., 12/20/1995)

The court holds that §§309(g)(6)(A)(ii) and 505(b)(1) of the Federal Water Pollution Control Act (FWPCA) do not bar a citizen suit against a textile facility for violations of its national pollutant discharge elimination system (NPDES) permits and Georgia's instream water quality standards, and rules on summary judgment motions regarding specific violations. In 1988 and 1992, the Georgia Environmental Protection Division (EPD) issued the facility two NPDES permits that established effluent limits and compliance schedules for zinc, copper, foam, floating solids, and lead. The EPD also issued several modifications and amendments to the permits. Downstream landowners and residents brought a §505 citizen suit alleging that the facility violated the FWPCA by discharging pollutants in excess of its permit limits and Georgia's instream water quality standards. The court first holds that abstention is not appropriate under the doctrine enunciated in Burford v. Sun Oil Co., 319 U.S. 315 (1943), because the FWPCA contemplates citizen suits as a supplement to state government action. The court next holds that plaintiffs' alleged failure to exhaust their administrative remedies by participating in the state administrative proceedings does not bar their claims. The parties do not dispute that plaintiffs fulfilled the FWPCA's requirement that they give notice to the U.S. Environmental Protection Agency, the state, and the alleged violator 60 days before bringing suit, which serves as a statutory exhaustion requirement. The court next holds that §309(g)(6)(A)(ii) does not bar plaintiffs' action as it relates to copper and zinc, because various administrative orders the EPD issued relating to the facility's copper and zinc discharges do not constitute diligent prosecution by the state. The orders fundamentally consist of a series of extensions of compliance deadlines, such that the EPD has not yet required the facility to meet the copper and zinc standards of its NPDES permit, and, therefore, has not diligently prosecuted the facility. The court also holds that §505(b)(1) does not bar the suit, because the judicial orders that a state court entered at the EPD's request were not issued to require compliance with the copper and zinc limits.

The court next grants plaintiffs summary judgment on the facility's liability for violating the discharge limitations for copper and zinc in the 1988 permit. Although the EPD's permit modifications purportedly extended the compliance deadlines, the modifications are not valid, because the EPD did not follow the required public modification process. Similarly, the facility is liable for violations of the 1992 permit, because the EPD's compliance extensions for that permit were also invalid. The court holds that genuine issues of material fact preclude summary judgment on plaintiffs' claim that the facility discharged copper, zinc, and lead in violation of Georgia's instream water quality standards. The court next grants the facility summary judgment on plaintiffs' claim that the facility violated its permits' toxicity provisions. The facility has complied with the enforcement response that EPD contemplated with regard to those requirements, and, therefore, is not in violation of those provisions. The court holds that genuine issues of material fact preclude summary judgment on plaintiffs' claim that the facility violated the 1992 permit's requirements regarding temperature and discharge of foam. The court next holds that plaintiffs may bring suit under the FWPCA for violations of Georgia's rules, because the permits make these rules part of their requirements, and the FWPCA authorizes citizen suits for the enforcement of all conditions of NPDES permits. The court grants plaintiffs summary judgment on their claim that the facility has violated the Georgia rules pertaining to discoloration of waters. The court also holds that plaintiffs may not sue the facility under the FWPCA for failing to comply with the EPD's order to submit the results of a fish study and any related upgrade proposals, because this order is not an "effluent standard or limitation" within the meaning of §505(a). Finally, the court holds that Georgia's four-year statute of limitations does not bar the plaintiffs' state-law negligence, nuisance, trespass, and strict liability claims. The claims relate to continuing, abatable acts, each of which gives rise to a new cause of action.

Counsel for Plaintiff
David H. Pope
Carr, Tabb & Pope
1355 Peachtree St. NE, Ste. 200, Atlanta GA 30309
(404) 876-7790

Counsel for Defendant
Gregory W. Blount
Constangy, Brooks & Smith
2400 Peachtree Ctr. Bldg.
230 Peachtree St. NW, Atlanta GA 30303
(404) 525-8622