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State Water Control Board v. Smithfield Foods, Inc

ELR Citation: 31 ELR 20502
Nos. 000736, 542 S.E.2d 766/(Va., 03/02/2001)

The court affirms a trial court holding that the doctrine of res judicata barred a state environmental agency's enforcement action against a food processor for violating its state pollution elimination system permit. After the state agency imposed more stringent limitations on phosphate discharges than required by the Clean Water Act (CWA), the processor challenged the incorporation of the limits into its discharge permit. The state agency and the processor then negotiated an administrative order authorizing the processor to discharge phosphorous in excess of its permit limitation for a period of time. The U.S. Environmental Protection Agency (EPA) then notified the state agency that it intended to file suit against the processor for violating its state permit. The state agency declined to join EPA's suit and instead filed suit in state court to enforce violations of the administrative order. Subsequently, the Fourth Circuit Court of Appeals held in United States v Smithfield Foods, Inc., 191 F.3d 516, 30 ELR 20076 (4th Cir. 1999), that the order was not binding on EPA. The processor then sought to bar the state agency's enforcement action based on res judicata.

The court first holds that res judicata bars the state environmental agency's enforcement action. The only element of res judicata at issue is privity, and privity exists in this case. Under the CWA, EPA approved the state's discharge elimination system program, and the state permit issued under the program is equivalent to an EPA national pollutant discharge elimination system permit. By qualifying the state's program under the CWA, the state agency and EPA determined that their interests in protecting the state's waters would be protected by the state agency pursuant to this joint program. Thus, the state agency and EPA share an identity of interest in the permit issued to the processor such that the state agency's legal right was represented by EPA in the federal action.

The full text of this decision is available from ELR (12 pp., ELR Order No. L-346).

Counsel for Plaintiff
Deborah Love Feild, Ass't Attorney General
Attorney General's Office
900 E. Main St., Richmond VA 23219
(804) 786-0098/2071

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