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Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc.

ELR Citation: 27 ELR 20976
Nos. 3:92-1697-17, 956 F. Supp. 588/(D.S.C., 01/22/1997) civil penalty assessed

The court imposes a $405,800 civil penalty against the owner and operator of a hazardous waste incinerator for violating the mercury discharge limit and the monitoring and reporting requirements of its 1987 national pollutant discharge elimination system (NPDES) permit. The court first holds that an administrative law judge's finding that the incinerator's 1993 NPDES permit was issued incorrectly does not impact the owner's 1987 permit, because an NPDES permit holder may not challenge the validity of the permit in an enforcement proceeding. The court then holds that the owner installed a metal removal system in good faith. Although the system was somewhat less expensive and its guarantee was somewhat more conditional than that of another system, the decision to purchase the system was reasonable under the circumstances. And the court rejects plaintiffs' contention that the owner could have resolved mercury excursions by simply reducing the feed rate of mercury-containing waste into the incinerator. There is no relationship between the amount of mercury in the feed rate and the amount of mercury in the incinerator's effluent. The court next holds that there has been no showing of any significant harm to the environment. The water quality standard for mercury is currently being attainted in the river that the incinerator discharges into, and the overall quality of the river exceeds levels necessary to support propagation of fish, shellfish, and wildlife, and recreation in and on the water. The court then finds that the incinerator has violated the daily maximum mercury limitation of its 1987 permit a total of 489 times, committed 420 violations of the permit's monitoring requirements, and committed 503 violations of the permit's reporting requirements.

The court then turns to determining the appropriate civil penalty to assess. The monitoring and reporting violations are not serious violations of the Federal Water Pollution Control Act. Further, the incinerator's effluent, even with the permit exceedences, has had no demonstrated adverse effect on the environment. The court then determines that the owner's economic benefit of noncompliance is $1,092,581. To calculate this amount, the court subtracts expenditures that were either not necessary for compliance or were made because the penalty item equipment was not in place from the total amount of delayed expenditures that were made to bring the incinerator into compliance with its NPDES permit. The court then determines that the civil penalty should be reduced by the owner's good-faith compliance efforts. It acted in good faith in relying on qualified environmental consultants to recommend the appropriate technology to solve its wastewater treatment problems. Moreover, it could not have achieved compliance with the permit's 1.3 parts per billion (ppb) mercury limit simply by restricting mercury feed. The court also holds that a further reduction is warranted because the owner has remedied its compliance problems and the permit's mercury limit could be 200 ppb but for the incinerator's demonstrated ability to achieve a much lower limit. The court concludes that a penalty of $405,800, plus potential fee awards, and the owner's own direct and indirect litigation expenses provide adequate deterrence under the circumstances of this case. Finally, the court holds that the lack of demonstrated harm and the fact that the incinerator is now and has for an extended period of time been in compliance with its permit compels the conclusion that no injunction or other form of equitable relief is appropriate.

[A prior decision in this case is published at 26 ELR 20457.]

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

Counsel for Defendant
Donald A. Cockrill
Ogletree, Deakins, Nash, Smoak & Stewart
3800 One Atlantic Center
1201 W. Peachtree St. NW, Atlanta GA 30309
(404 881-1300)