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United States v. Smithfield Foods, Inc.

ELR Citation: 30 ELR 20076
Nos. No. 97-2709, 191 F.3d 516/49 ERC 1193/(4th Cir., 09/14/1999) Liability upheld, penalties rev'd and remanded

The court upholds a district court decision finding the owner and operator of two swine slaughtering and processing plants in Virginia liable for violating its national pollutant discharge elimination system (NPDES) permit and for submitting false discharge monitoring reports. The court first holds that an order issued by the state water control board in May 1991, did not take precedence over or alter the terms of the 1992 permit issued by the board. It is illogical that correspondence written before the 1992 permit was finalized could change the terms of a subsequently issued document. Therefore, violations of the 1992 NPDES permit were not excused by the 1991 order. The court also finds that the U.S. Environmental Protection Agency (EPA) was not bound by the board's orders simply because it failed to object during the permitting process.

The court next holds that the state's enforcement scheme is not sufficiently comparable to Federal Water Pollution Control Act (FWPCA) §309(g) to act as a bar to EPA's suit. The state's enforcement scheme does not give it authority to assess administrative penalties without the violator's consent and does not provide adequate procedures for notice and public participation. The court further holds that this suit was not barred by either Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 18 ELR 20142 (1987), or FWPCA §510. The corrective actions being taken by the plants did not preclude EPA's enforcement action because the chosen enforcement methods were not achieving compliance. Additionally, while FWPCA §510 allows states to enforce more stringent effluent standards, the FWPCA also provides that EPA has the authority to enforce these more stringent state effluent standards once they are incorporated into a polluter's permit. Therefore, once the more stringent standards were incorporated into the permit of the processing plant, they were subject to enforcement by EPA.

Finally, the court reverses and remands the penalty determination based on the district court's finding that an expert witness' margin of error of 4 percent for the weighted average cost of capital was insignificant.

[A prior decision in this litigation is published at 28 ELR 20445.]

Counsel for Plaintiff
Joan M. Pepin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
John G. Roberts Jr.
Hogan & Hartson
Columbia Sq.
555 13th St. NW, Washington DC 20004
(202) 637-5600

Before Hamilton and Anderson, JJ.