Natural Resources Defense Council, Inc. v. Interstate Paper Corp.

No. 487-169 (S.D. Ga. November 22, 1988)

The court approves a consent decree in a Federal Water Pollution Control Act (FWPCA) citizen suit that provides funding to a private organization for a wetlands mitigation project. The Environmental Protection Agency's (EPA's) FWPCA civil penalty policy specifically authorizes the use of environmentally beneficial mitigation projects to aid in settlement of cases, but requires that a settlement that includes a mitigation project also include a substantial monetary penalty. The court holds that the $ 15,000 civil penalty in this case satisfies that requirement. The court declines to disapprove the decree's provision providing for payments to a private conservation organization for the education of school children. Although this provision may be improper under EPA's penalty policy, it has been properly agreed to by the parties.

Counsel for Plaintiffs
Louisa Abbot
701 Abercorn St., Savannah GA 31401
(912) 236-6161

Counsel for Defendant
Charles M.Jones, G. Brinson Williams
Jones, Osteen, Jones & Arnold
206 E. Court St., P.O. Box 800, Hinesville GA 31313
(912) 876-0111

Counsel for U.S. Government
Amelia S. Salzman
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-1442

[19 ELR 20901]

Alaimo, J.:

Order

A copy of a proposed consent decree in this action was sent to the United States government for review pursuant to Section 505(c)(3) of the Clean Water Act ("the Act"), 33 U.S.C. § 1365(c)(3). The Government, in response, submitted comments for the record [19 ELR 20902] suggesting that certain provisions in the proposed settlement might be contrary to the Act.

Discussion

The Government first suggests that the proposed consent decree is contrary to the Act because it impermissibly provides payments of "civil penalties" to entities other than the United States.

The consent decree does provide for payments to entities other than the United States Treasury. Whether the payments provided pursuant to a consent decree in the course of settlement can be considered "penalties" is questionable. Even if they can be, the type of payments at issue are specifically permitted under the EPA's published Clean Water Act Penalty Policy for Civil Settlement Negotiations, February 11, 1986 ("Penalty Policy").

The Policy specifically provides for the use of environmentally beneficial mitigation projects to aid in settlement of Clean Water cases. Penalty Policy, at V. The use of mitigation projects is subject to certain limitations. The Government argues that the proposed consent decree does not comply with some of these. At issue is a provision which provides that a settlement in which a mitigation project is included should still contain a substantial monetary penalty component. Penalty Policy, at V(5). The Government here will receive $ 15,000. This is a significantly large amount to maintain the perception in the public's eyes, as required under the policy, that the Government does not lack the "resolve to impose significant penalties for substantial violations."

Also at issue is the policy provision which permits mitigation projects that "closely address the environmental effects of the defendant's violation." Penalty Policy, at V(2). The Government does not object to the $ 55,250 to be paid to the Trust for Public Land for use in wetlands mitigation and study down river from the defendant's discharge point. It argues, however, that the $ 27,750 to be paid to the Georgia Conservancy, to be used primarily for education of school children, is not the type of mitigation project contemplated. Plaintiff argues that other courts have approved consent decrees which include payments to educational facilities. While it is true that such payments have been approved in the past, those brought to the attention of the Court were expressly made for the purpose of funding research related to the particular violation. Although it acknowledges that the EPA policies are not binding on this Court, the Government argues that they should be granted a certain degree of deference. While the contemplated payment to the Georgia Conservancy does not conform to the requirements of the Penalty Policy and while it may be considered improper under that policy, it has been properly agreed upon by the parties to this action.

The Government finally expresses concern that the consent decree would eliminate any cause of action it might have against the defendant for past, continuing or future violations of the Act. The United States is not a party to this action; therefore, no settlement can be construed to limit or restrict its statutory enforcement authority pursuant to § 309 of the Act, 33 U.S.C. § 1319.

Conclusion

The Court, having considered the Government's comments, accordingly directs the Clerk of the Court to enter the consent decree.