Sierra Club v. Raytheon Co.

No. 84-1785-MA (D. Mass. October 26, 1984)

In a Federal Water Pollution Control Act citizen suit, the court holds that plaintiffs gave adequate notice and have standing, and that the suit may address past violations. The court first holds that the notice to defendants was adequate even though it was served on the company's president and plant supervisor and not on the company's registered agent. The court next holds that plaintiffs' allegations that some of their members live near and are affected by the polluted river are sufficiently specific to give them standing. Turning to merits of the claims, the court notes that the complaint alleges permit violations at both of the company's outfalls. Even though one of the outfalls is now covered by a general permit, the latest discharge monitoring reports (DMRs) show it still to be in violation. Also, the court holds that plaintiffs may seek relief for past violations at the other outfall. The statute, its legislative history, and the caselaw are in accord with this holding. The court grants summary judgment to plaintiffs on the company's liability for violations recorded in the company's DMRs and uncontested by the company, and orders the company to give plaintiffs copies of all DMRs filed in the next year.

Counsel for Plaintiffs
James Thornton
Natural Resources Defense Council
122 E. 42nd St., New York NY 10017
(212) 949-0049

Peter Koff
Koff & Lawson
33 Mt. Vernon St., Boston MA 02108
(617) 742-4646

Counsel for Defendants
Neil Minahan
J.D. Raytheon Co.
141 Spring St., Lexington MA 02173
(617) 862-6600

Donald Angelhart
Gadsby & Hannah
One Post Office Square, Boston MA 02109
(617) 357-8700

[15 ELR 20990]

Mazzone, J.:

Memorandum and Order

This is an action brought by two conservation organizations, Sierra Club and the National Resources Defense Council, Inc., seeking to prevent the defendant Raytheon Company from polluting the portion of the Concord River located in Lowell, Massachusetts. The parties have filed cross-motions for summary judgment. This Court has jurisdiction over this case pursuant to 33 U.S.C. § 1365(a) [section 505(a) of the Federal Water Pollution Control Act].

On the basis of the materials submitted to this Court, the following facts are essentially undisputed. The Sierra Club and the National Resources Defense Council, Inc. (collectively, the plaintiffs) are both environmental organizations. Some members of both groups live in Massachusetts in the vicinity of the Concord River as it flows through the town of Lowell, Massachusetts. Raytheon Company (Raytheon) is a Delaware corporation that has its principal place of business in Lexington, Massachusetts. Raytheon operates a production plant in Lowell. As part of the metal finishing process that occurs at the plant, certain effluents are discharged into the Concord River. These discharges are subject to detailed regulation and must conform to a National Pollutant Discharge Elimination System (NPDES) permit. This permit is issued pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (the Act). Raytheon holds NPDES permit MA 0001414 (the Permit). This permit regulates discharges from two different points or "outfalls" along the Concord River. These outfalls are numbered "001" and "002."

There is some dispute as to whether outfall 002, which discharges only noncontact cooling waters, should be dealt with in this case. According to Raytheon, outfall 002 ceased to be subject to the permit as of April 17, 1984. At that time, the Environmental Protection Agency (EPA) issued a general NPDES permit covering non-contact cooling waters that were discharged into the relevant section of the Concord River. This general permit was to supersede the specific NPDES permit if the proper notification requirements were met. Raytheon has stated that it has complied with the notice requirement necessary to remove outfall 002 from the Permit (which governs outfall 001). Raytheon, however, has failed to specify the date on which this notice was given. The complaint alleges and the evidence shows that violations occurred and are occurring at both outfalls.

NPDES permits require the holders of such permits to self-monitor discharges and regularly report the results in the form of discharge monitoring reports (DMRs). By statute, these DMRs are available to the public.

The plaintiffs claim that Raytheon has exceeded the discharge limits set out in the Permit 86 times since August, 1979. In support of their claims, they have submitted copies of Raytheon's DMRs dating from August 1979 through October, 1983. The plaintiffs have also submitted a copy of a letter dated December 2, 1983, from the Natural Resources Defense Council to Raytheon's president. This letter outlines Raytheon's alleged violations and states that the letter is sent pursuant to 33 U.S.C. § 1365(b) which requires that those persons seeking to file a citized suit under that section of the Act give the alleged violator sixty days notice of their intent to sue. An exhibit attached to the complaint and filed with it on June 7, 1984, lists the alleged violations reported "since submission of the Notice of Intent to Sue." The alleged violations reported in the exhibit all occurred in October of 1983.

In opposition to plaintiffs' motion and in support of its own motion for summary judgment, Raytheon has submitted an affidavit by Robert J. Baxter (Baxter), its Director of Environmental and Energy Conservation, attached to which are the DMRs for December, 1983, through June, 1984. Also attached is a copy of an Administrative Order, Docket Number 83-02 (the Order) issued by the EPA dated November 19, 1982. The Order and a cover letter sent with it give a history of violations of the Permit and set a schedule for modifications to be made to the waste-water treatment plant. This schedule was "negotiated with [Ratheon's] engineer Fred Spinazzola." The schedule sets interim effluent levels and requires completion and fine tuning of the new system within seven months of approval of the plan by the Massachusetts Division of Water Pollution Control. Baxter's affidavit states that Raytheon complied with this Order at a cost of approximately $230,000 and that the system was installed and "fine-tuned" by December of 1983. The DMRs for December 1983 through June 1984 show no violations of the permitted levels for outfall 001, but do show what appear to be very minor violations of the minimum pH factor set for outfall 002 for the months of January through June, 1984.

Baxter's affidavit states that 21 of the alleged 86 violations prior to December 2, 1983 were not violations at all but resulted from the plaintiffs' confusion as to the meaning of the limits set by the permit. Another one of the alleged violations was apparently caused by a recording error which arose when "80 mg/l" was recorded rather than "8.0 mg/l." A total of 22 alleged violations, then, are disputed. There is no dispute that at least 64 actual violations occurred prior to December, 1983.

In response to this affidavit, the plaintiffs filed an affidavit by Joshua A. Bloom, a Natural Resource Defense Council employee, which states that (1) the DMRs violate federal regulations by reporting only the total amount of metals discharged, rather than breaking the discharges down into "suspended" and "dissolved" metals; and (2) this failure to properly report the discharge levels makes it impossible to determine whether some of the alleged violations constitute substantive as well as procedural violations of the permit.

The plaintiffs have moved for summary judgment requesting that this Court (1) declare that Raytheon has violated and is in violation of the Act; (2) enjoin Raytheon's operation of the plant in a manner that would further violate the Permit; (3) order Raytheon to turn over to plaintiffs copies of all DMRs at the time they are filed with the appropriate governmental authorities; (4) assess civil penalties of $10,000 per day of violation; and (5) award plaintiffs costs and attorney's fees. Raytheon has moved for summary judgment on the grounds that (1) plaintiffs failed to give proper notice; (2) this Court has no jurisdiction of the case since the complaint [15 ELR 20991] is based solely on past violations and the Act only authorizes citizen actions to abate existing or recurring violations; (3) plaintiffs lack standing; (4) there are genuine disputes of material fact; and (5) this is an appropriate case in which to enter summary judgment in Raytheon's favor.

II. Defendant's Motion for Summary Judgment

The defendant makes two threshold arguments. The first of these is that the plaintiffs failed to give the proper notice as required by 33 U.S.C. § 1365(b) and the EPA regulations governing the manner in which notice must be served. Under those regulations, notice must be sent to the registered agent of a corporation. 40 C.F.R. § 135.2 (1983). In the present case, notice was sent to Mr. Charles Mullaney, the defendant's President and Plant Supervisor at the Lowell Plant. Notice was not sent to the corporation listed as the registered agent on Raytheon's foreign corporation annual report.

The defendant argues that this inadvertence acts as an "absolute jurisdictional bar" to the maintenance of this case. This argument is unpersuasive. The cases cited by Raytheon in support of this proposition are all clearly distinguishable. In Commonwealth of Massachusetts v. United States Veterans Administration, 541 F.2d 119 (1st Cir. 1976), the plaintiffs failed to wait the 60 days required before filing suit. The decision in Cityof Evansville, Indiana v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 [9 ELR 20679] (7th Cir. 1979), cert. denied, 444 U.S. 1025, does not specify in what regard the notice in that case was deficient and thus does not directly support the defendants' claim. Biederman v. Scharbarth, 483 F. Supp. 809 (E.D. Wisc. 1980) involved the failure of plaintiffs to give any notice. Finally, in Loveladies Property Owners Association, Inc. v. Raab, 430 F. Supp. 276 (D.N.J. 1975), aff'd, 547 F.2d 1162 (3d Cir. 1976), the plaintiffs apparently failed to give notice to the Administrator of the EPA and to name him as a party. None of these cases supports the defendant's position that such a highly technical flaw in giving notice serves to deprive this Court of jurisdiction. I find that this notice — perfect in all other respects — sent to the president of a corporation and plant supervisor at the scene of the alleged violations is adequate notice.

Defendant's second threshold argument is that the plaintiffs lack standing to bring this case because plaintiffs' allegations of injury are both too general and insufficiently supported by facts to confer standing. Raytheon correctly cites Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972) as governing this case. Raytheon further cites Sierra Club v. SCM Corp., 580 F. Supp. 862 [14 ELR 20260] (W.D.N.Y. 1984) in support of its claim that plaintiffs do not have standing in this case:

[P]laintiff has failed to show that any particular member of its organization has or may be adversely affected in any specific way by defendant's actions . . . .

Defendants' Brief at 17, quoting Sierra Club v. SCM Corp., 580 F. Supp. at 865. In that case, however, only one of the plaintiff's members resided in the town in question and there was no allegation that he had any contact with or used the creek that was being polluted. 580 F. Supp. at 864. The court noted that the plaintiff did not intend to disclose the identify of that member. Id.

In contrast, the complaint in this case states that plaintiffs' members live near the Concord River, recreate in and near it, and the plaintiffs are willing, if reluctant, to disclose the names of those members. There is a specific allegation that the quality of the waters in the Commonwealth "directly affects the health, recreational, aesthetic, and environmental interests" of plaintiffs' members. Complaint at 3. I find these allegations of specific injury sufficient to confer standing on the plaintiffs under the standards set forth in Sierra Club v. Morton. See Loveladies Property Owners Association, 430 F. Supp. at 280; Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 852-53 [14 ELR 20663] (N.D.N.Y. 1984). Even one of the cases furnished by Raytheon itself in support of its motion supports a finding of standing in similar circumstances. Hudson River Sloop Clearwater, Inc. v. Consolidated Rail Corp., 591 F. Supp. 345, [14 ELR 20627] (N.D.N.Y. 1984) [No. 82-CV-1307, slip op. at 8-9 (N.D.N.Y. July 2, 1984)].

In addition to these two threshold arguments, Raytheon raises the four following points: (1) only outfall 001 is involved in this case; (2) according to Baxter, there have been no violations at outfall 001 since the complaint was filed; (3) section 505 "does not provide a jurisdictional basis for actions relying solely on past violations"; and (4) case law supports this interpretation of the Act. I note first that violations at outfall 002 were alleged in the complaint and that the DMRs for outfall 002 indicate violation of the pH factor from January 1, 1984 through June 30, 1984 (the most recent time period for which DMRs have been filed with this Court). I find that these DMRs are evidence of continuing violations of the Act, and that the plaintiffs have standing to seek to enjoin the operation of the plant in a manner that violates the standards set for outfall 002. I see no reason to disregard Raytheon's violations at outfall 002 merely because an additional permit may be involved. Violations at outfall 002 were alleged in the complaint and there is no dispute that, as of June 30, 1984, violations were still occurring.

As to the past violations at outfall 001, I find that the Act indeed confers on citizens the right to seek to impose civil damages under section 1365(a) for the following reasons: (1) the language of the statute is somewhat ambiguous and does not prevent such an interpretation; (2) legislative history reveals a congressional intent to permit citizens to seek penalties for past violations; (3) case law supports this rule; and (4) Raytheon's arguments against such a rule are unpersuasive.

1. Statutory Language

The citizen suit provision of the Act is somewhat ambiguous. Section 1365(a)(1) states that a citizen may sue anyone "who is alleged to be in violation" of either an effluent standard or an order with respect to that standard. 33 U.S.C. § 1365(a)(1) (emphasis added). The later language of that same section, however, gives district courts authority to impose "any appropriate civil penalties under section 1319(d) of this title." 33 U.S.C. § 1365(a). Clearly any such penalties would have to arise from violations occurring prior to the entry of judgment. The statute does not draw any distinction between violations occurring before and after institution of the suit, and there seems to be no reason for reading such a distinction into the statute.

2. Legislative History

The legislative history of the Act indicates that the Senate intended the citizen suit provision to enable citizens to seek the imposition of civil penalties for past violations:

One modification would allow the Court to impose civil penalties provided as a result of actions brought by citizens. It should be noted that any penalties imposed would be deposited as miscellaneous receipts [in the Treasury] and not be recovered by the complainant.

S. Rep. No. 92-414, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News 3668, 3745. The House also contemplated that citizens would seek civil penalties:

. . . [T]he courts are authorized to apply appropriate civil penalties . . . . The penalties imposed would be deposited as miscellaneous receipts in the treasury and not be recovered by the citizens bringing the suit.

H. Rep. No. 92-911, in A Legislative History of the Water Pollution Control Act Amendments of 1972 at 820. Neither the Senate nor House comments indicate any intent to distinguish between penalties imposed for past violations and those imposed for violations occurring after the time the complaint is filed.

3. Case Law

Raytheon has cited several cases that at least superficially indicate that the plaintiffs have no right to seek civil penalties for past violations. The plaintiffs, however, have cited several cases that persuade me that a citizen suit can indeed be maintained to impose civil penalties for past violations of an NPDES permit. Student Public Interest Research Group of New Jersey v. Monsanto Co., No. 83-2040, slip op. at 16 [14 ELR 20228] (D.N.J. Dec. 6, 1983) (Monsanto); Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 853-54 [14 ELR 20663] (N.D.N.Y. 1984) (Alcoa). See also Illinois v. Outboard Marine Corp., Inc., 680 F.2d 473, 480-81 [12 ELR 20797] (7th Cir. 1982) (Outboard Marine). While I will not reproduce the analysis of this question performed in those cases, I note that those courts explicitly found that citizens have standing in cases where the only violations are past violations of the Act. Monsanto, at 853-54; Alcoa, slip op. at 25; Outboard Marine at 480-81. The Alcoa court, for instance, noted:

[15 ELR 20992]

Here, plaintiff, as a private attorney general, seeks the imposition of civil penalties against defendant. The availability of such relief is well in keeping with the holding of Outboard Marine. . . . To allow defendant to escape application of these sanctions . . . would frustrate the purposes of the Act.

Alcoa, slip op. at 25. In Alcoa, the Sierra Club had alleged that the defendant had violated its NPDES permit over 615 times prior to the institution of the complaint or the sending of the 60 day notice letter. Civil penalties were sought on the basis of the past violations of the NPDES permit.

As discussed below, the cases cited by Raytheon do not convince me that Monsanto, Alcoa, and Outboard Marine are incorrect.

4. Raytheon's Argument

Raytheon bases its argument that civil penalties are not available in a citizen suit on City of Evansville, Indiana, supra at 5 and Commonwealth of Massachusetts v. United States Veterans Administration, supra at 5. I note first that City of Evansville was decided by the Seventh Circuit three years before that Circuit's decision in Outboard Marine. Outboard Marine does not mention City of Evansville presumably because the latter concerns an attempt to obtain damages, not civil penalties. I find that City of Evansville is therefore inapplicable to this case. See City of Evansville, 604 F.2d at 1014.

Similarly, Commonwealth of Massachusetts v. United States Veterans Administration does not squarely address the issue of whether the citizen suit provision permit the imposition of penalties for past violations. The case only discusses violations of the notice provisions of the statute. The Commonwealth, as plaintiff, had filed suit prior to the expiration of the 60 day notice period. The court based its holding on the fact that failure to give proper notice deprived the district court of jurisdiction under the Act. Although the court did state that recourse to the courts was only appropriate when administrative action was less than adequate, this comment was made in response to a request to ignore the 60 day notice requirement. The holding of the case in no way indicates that citizen suits may not be maintained for past violations of an NPDES permit. Commonwealth of Massachusetts v. United States Veterans Administration, 541 F.2d at 121.

Because I find Raytheon's arguments unpersuasive, its motion for summary judgment is denied.

III. Plaintiffs' Motion for Summary Judgment

Plaintiffs seek the following relief: (1) a declaration that Raytheon has violated and is in violation of the Act; (2) an injunction; (3) an order that Raytheon turn over to plaintiffs all DMRs as filed with governmental authorities; (4) civil penalties of $10,000 per day of violation; and (5) costs and attorney's fees. Based on the discussion above, I grant plaintiffs' motion in part.

1. As there is no dispute that at least 64 violations occurred prior to December 2, 1983, I find that Raytheon violated the Act 64 times prior to that date. I further find that Raytheon has violated the minimum pH factor at outfall 002 from January 1, 1984 through June 30, 1984. As to the remaining 22 violations, I find that there is substantial controversy as to the facts, and therefore the existence of those violations will have to be resolved at trial, since it would be inappropriate to grant summary judgment as to those 22 violations under Fed. R. Civ. P. 56.

2. Because Raytheon's DMRs indicate that as of June 30, 1984, it was violating the minimum pH factor at outfall 002, Raytheon is hereby ordered to file with this Court within 30 days of this order a plan to comply with all effluent standards for both outfalls. If thereafter Raytheon fails to conform with those standards, the plaintiffs may apply to this Court for an injunction which shall issue promptly.

3. Raytheon is hereby ordered to turn over to plaintiffs copies of all DMRs for both outfalls at the time they are filed with the appropriate governmental authorities for a period of one year from the date of this order.

4. Having in mind the nature of the violations and the efforts which have been made to comply with the standards, it is appropriate for me to reserve judgment on the level of civil penalties, if any, until trial on the merits of the remaining 22 violations alleged.

5. I further reserve judgment on the amount of costs and attorney's fees until after the trial on the merits of the remaining violations.

IV. Conclusion

For the reasons stated above, the defendant's motion for summary judgment is denied. The plaintiffs' motion is hereby allowed in part, that is, allowed as to the 64 violations that occurred prior to December 2, 1983. The motion is denied as to the remaining 22 violations.

SO ORDERED.