Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp.

No. 83-0740 (D.R.I. May 17, 1984)

The court rules that Federal Water Pollution Control Act (FWPCA) citizen enforcement suits are limited to actions to enjoin ongoing violations and actions for civil penalties, which must be paid to the government. Upholding for the most part the legal conclusions of a magistrate, the court first rules that § 505 of the FWPCA does not authorize injunctive relief concerning violations previously abated. Nor, the court rules, does the Act create implied private rights of action for damages. As the Supreme Court made clear in Middlesex County Sewerage Authority v. National Sea Clammers Association, 11 ELR 20684, the FWPCA preempted any federal common law damage remedies. Civil penalties may be imposed in an FWPCA citizen enforcement suit, but, the court rules, they must be paid to the government, not to the private plaintiff. Whilethe magistrate correctly stated the law on these points, he applied it somewhat too strictly in calling for final dismissal of plaintiff's action. Generously read, the complaint avers ongoing violations of the FWPCA. Plaintiff did fail to allege compliance with the 60-day notice requirement of § 505, but the court merely dismisses with leave to refile within 20 days an amended complaint drafted in accord with its holdings on the scope of § 505.

Counsel for Plaintiff
Jeffrey Lanphear
2139 Broad St., Cranston RI 02905
(401) 781-0180

Counsel for Defendant
Gregory L. Benik
Hinckley & Allen
2200 Fleet Nat'l Bank Bldg., Providence RI 02903
(401) 274-2000

Douglas Kliever
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

[14 ELR 20685]

Selya, J.:

Memorandum and Order

This case was initially referred to a United States Magistrate for consideration pursuant to 28 U.S.C. § 636(b)(1)(B) in respect to Ciba-Geigy Corporation's alternative motion to dismiss the complaint or for a more definite statement. On April 30, 1984, the magistrate, in a detailed report and recommendation (Report), suggested that the motion to dismiss be granted, with limited leave to amend. The plaintiffs have interposed an objection to the Report. This court has considered the matter de novo, see Local Rule 32(c)(2), and has concluded, for the reasons outlined below, that the Report is worthy of acceptance, subject to modification as limned hereby.

The plaintiffs raise four points of contention vis-a-vis the Report. These relate solely to the magistrate's ruling anent Section V of the complaint (the so-called "federal" statement of claim), and in no wise implicate those portions of the Report dealing with the several state law claims. Any and all other arguments previously made to the magistrate are deemed to be waived and need not be studied anew. Id. Thus, the court need not independently pass upon the Report insofar as it treats with the state law allegations (Report at 7-9), but will merely accept the same without further ado. The court will, however, briefly address in combination the four grounds of objection (all of which have, as noted above, a common federal focus).

The magistrate concluded that, in the absence of any allegation that the defendant was currently engaged in ongoing violation(s) of effluent discharge standards or limitations, no private action would lie under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et. seq., and specifically, under 33 U.S.C. § 1365(a). Report at 4-5. He further held that there is no implied private right of action for damages within the interstices of the FWPCA, Report at 5; that civil penalties may only be assessed in accordance with 33 U.S.C. § 1319(d), and if so assessed, are payable to the government (not to private parties-plaintiff), Report at 5-6; and that no sufficient showing has been made out upon which general federal question jurisdiction, 28 U.S.C. § 1331, may be postulated. The aggregate effect of the plaintiffs' objection is to challenge each and all of these observations.

The magistrate cites respectable authority for his holdings; and, save only for ananfractuous reading of an isolated bit of legislative history, the plaintiffs' remonstrances do little to undermine this support. There is nothing in § 1365(a) which would confer jurisdiction upon a district court to enjoin, presumably as a matter of historical interest, FWPCA effluent discharge violations previously abated and no longer ongoing. Thus, the magistrate's insistence upon a continuing violation as a prerequisite to the grant of a § 1365(a) restraining order appears inexpugnable. As this court has remarked in another context:

When all is said and done, "the sole function of an action for injunction is to forestall future violations, not to exact retribution for past wrongs."

Home Placement Service, Inc. v. Providence Journal Co., 573 F. Supp. 1423, 1428 (D.R.I. 1983), quoting United States v. Oregon State Medical Society, 343 U.S. 326, 333 (1952).

The recent First Circuit decision in Conner v. Aerovox, Inc., No. 83-1169 [14 ELR 20370] (1st Cir. March 28, 1984), plainly indicates that, in this circuit, implied rights of action will not be read blithely into the FWPCA, e.g., id., slip op. at 8; and further, Conner, e.g., id. at 8-9, adopts an interpretation of the landmark case of Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1 [11 ELR 20684] (1981) which runs diametrically opposite to what the plaintiffs¹ would have this court read into that opinion. There is no cause of action such as the plaintiffs envision arising by statutory implication. And, a fair reading of the statutes, of Sea Clammers, and of the circuit court decisions in Conner, Illinois v. Outboard Marine Corp., 680 F.2d 473 (7th Cir. 1982), Marquez-Colon v. Reagan, 668 F.2d 611 [12 ELR 20286] (1st Cir. 1981) and Matter of Oswego Barge Corps., 664 F.2d 327 (2d Cir. 1981) leaves little room to doubt the efficacy of FWPCA preemption as to claims sounding in any theory of "federal common law."² Thus, except as they may be brought in accordance with authorization expressly conferred by FWPCA, plaintiffs' federally-grounded claims are baseless.

[14 ELR 20686]

The magistrate, then, was correct in concluding that the only federally-grounded remedies available to these plaintiffs are as set out in 33 U.S.C. § 1365. That statute, in turn, provides not for monetary damages,³ but for (i) enforcement of effluent standards and limitations and (ii) civil penalties. It cannot seriously be questioned that the latter remedy, although permissible ancillary to a citizen suit, refers to penalties which, if levied, are to be payable to the government. This is apparent both from the language and context of the Act, see 33 U.S.C. § 1319(d), and from the legislative history. E.g., H.R. REP. 92-911, 92d Cong., 2d Sess. 133 (1972). So, unless the magistrate erred in his view of the enforcement aspect of plaintiffs' federal statement of claim, the Report should be accepted as authored.

This court, see text ante at 2-3, agrees with the magistrate's conclusion, Report at 5, that FWPCA's citizen suit provision only reaches ongoing — not past — violations of effluent discharge standards. Yet, on a motion to dismiss, the burden is on the movant to establish that the plaintiffs can prove no set of facts which would entitle them to maintain their theory of relief. Harper v. Cserr, 544 F.2d 1121 (1st Cir. 1976). The plaintiffs' version of the facts, as pleaded, must be taken as gospel. Seveney v. United States Dept. of the Navy, 550 F. Supp. 653 (D.R.I. 1982). And, although the plaintiffs' allegations are inconsistent and confusing at best, they do allege (Complaint, P12) that "the defendant . . . is discharging effluents into the Pawtuxet River." (Emphasis added). This asseveration has not been abandoned; the plaintiffs argue here, Memorandum at 3, that the violations are ongoing. While the court may, given an overview of the facts, be skeptical (as was the magistrate, Report at 5) as to whether a continuing discharge violation can be proven, the plaintiffs should not be cut off at this particular pass without a fair opportunity to document their claim. Similarly, the practical aspects of the situation elucidated by the magistrate (Report, n.1 and n.2), while potent evidence as to the facts, cannot control for FED. R. CIV. P. 12(b)(6) purposes. As this court has lately observed in an analogous context: "After all, doubt, no matter how wellfounded or how deeply rooted, does not, in the absence of omniscience, rise to the level of certainty." Linder v. Berge, 577 F. Supp. 279, 282 (D.R.I. 1983). The magistrate was technically correct in pointing out that the complaint, as framed, lacks a precise averment that the "defendant is presently in violation of any effluent standard or limitation." Report at 5. But, this omission could well have been inadvertent if one credits the language of paragraph 12 of the complaint.

The complaint, in respect to the federal statement of claim, likewise fails to allege compliance with the statutory notice provisions, 33 U.S.C. § 1365(b)(1). This, too, is a fatal flaw, Biederman v. Scharbath, 483 F. Supp. 809 (E.D. Wis 1980), but one which the plaintiffs say can be rectified.⁴ The interests of justice require, in these circumstances, that some leeway be given in permitting amendments.

Because of the inconsistencies and imprecisions which plague the federal statement of claim as it now stands, the defendant's motion is well taken. This statement of claim must be repleaded, consonant with the teachings hereof and devoid of the thrust for compensatory and-or punitive damages under any federally-grounded theory. It is assumed, of course, that any repleading of the federal statement of claim will, if facts are pleaded sufficient to make out a FWPCA claim, comply fully with the mandate of FED. R. CIV. P. 11.

The motion to dismiss is granted; without prejudice to the plaintiffs' right to file, within 20 days from the date hereof, an amended complaint (i) for FWPCA enforcement of ongoing effluent standard violations (and civil penalties ancillary thereto, payable to the United States) and (ii) for state law claims in conformity with the Report.

So ordered.

1. Plaintiffs' Memorandum In Support of Objection (Memorandum), at 3.

2. See also Milwaukee v. Illinois, 451 U.S. 304 (1981).

3. Insofar as the plaintiffs' claim of entitlement to money damages in a private action under the FWPCA rests on legislative history, e.g., Memorandum at 3, it is unpersuasive. In point of fact, the Supreme Court has found that the legislative history of FWPCA points in a very different direction from that shown by the plaintiffs' compass. Sea Clammers, 453 U.S. at 17.

4. The magistrate appropriately noted that the injunctive relief sought by the plaintiffs oversteps the bounds of FWPCA. Report at 6. In and of itself, this would not, however, appear to be grounds for dismissal (although good practice would favor tailoring the remedy sought to that available by law or in equity). The courts have become hardened to the ways of pleaders who pray for the sun, the moon and all the stars, knowing full well that they are at most entitled to one of the lesser constellations.