Legal Environmental Assistance Foundation, Inc. v. Board of County Commissioners

No. 88-50142-RV (N.D. Fla. October 27, 1989)

The court holds that a citizen suit under the Federal Water Pollution Control Act (FWPCA) to enforce a national pollutant discharge elimination system permit is not moot. The Environmental Protection Agency (EPA) has not yet answered a permittee's request for an evidentiary hearing to contest the permit conditions, even where EPA seems to indicate that it has granted a stay of those conditions since EPA lacks statutory authority to stay contested permit conditions without an evidentiary hearing. The court denies the permittee's request for a stay, pointing to a record of past violations and current discharges that exceed the permit limits. Even if the permit conditions were stayed, defendant would be in violation of the terms of the previous permit. The court rejects the permittee's claim that the stay should be granted because the permit is about to expire. Under the FWPCA, the existing permit remains in effect until renewal or issuance of a new permit. The court also holds that although state civil or criminal court action preempts FWPCA citizen suits, Florida's administrative action does not preempt this citizen suit because the administrative enforcement provision does not authorize the imposition of penalties. The court holds that the doctrine of primary jurisdiction does not apply, since this case turns on whether defendant has violated its permits and not on scientific or technical issues.

Counsel for Plaintiff

David Ludder

Legal Environmental Assistance Foundation, Inc.

203 N. Gadsden St., Ste. 5, Tallahassee FL 32301

(904) 681-2591

Counsel for Defendant

Nevin J. Zimmerman

Burke & Blue

221 McKenzie Ave., P.O. Box 70, Panama City FL 32401

(904) 769-1414

[20 ELR 20868]

Vinson, J.:

Order

The Legal Environmental Assistance Foundation (LEAF) filed this citizen suit seeking to enforce the conditions of the National Pollutant Discharge Elimination System (NPDES) permit issued to Bay County for the operation of its wastewater treatment plant located at Military Point, Tyndall Air Force Base. LEAF alleges that Bay County has violated, and continues to violate, the Clean Water Act by discharging pollutants in excess of the limits set by the NPDES permit. LEAF has attached to its complaint a list of approximately 1000 violations of two consecutively issued NPDES permits.

In its Answer, Bay County does not deny discharging in excess of the limits set in the permits, but it asserts six affirmative defenses. Pending are Bay County's motion for a stay and motion for a protective order (docs. 13 & 14), and LEAF's motion to strike four of the affirmative defenses asserted by Bay County in its answer. (Doc. 15).

I. Facts

On January 3, 1980, the Environmental Protection Agency (EPA) issued a NPDES permit to Bay County setting limits on the amounts of pollutants discharged from the Military Point treatment plant into the waters of St. Andrews Bay. The 1980 permit expired in 1981, but the EPA did not renew the 1980 permit until 1984. Due to the delay in the renewal of the 1980 permit, the terms of the 1980 permit remained in effect until 1984. The duration of the renewed permit, however, is measured by reference to the expiration date of the previous permit. Thus, the renewed permit ("the 1984 permit") will expire on October 31, 1989. Bay County filed a formal request with the EPA for an evidentiary hearing to contest the terms of the 1984 permit. Apparently, the EPA did not formally grant Bay County's request. The record is not clear on whether the EPA formally denied the request, or merely took no action. In 1987, the EPA published proposed modifications to the 1984 permit, but those proposed modifications were later withdrawn.

On April 1, 1986, the Florida Department of Environmental Regulation (DER) issued an operation permit to the Military Point [20 ELR 20869] treatment plant. On March 23, 1987, Bay County requested an extension of the operation permit until 1991. The DER extended the permit until 1988, but declined to extend it further because the DER determined that Bay County was not complying with the limitations set out in the permit. On February 3, 1988, the DER conducted a compliance sampling of the treatment plant and noted "numerous deficiencies with the operation and maintenance of the facility." (Consent Order, Def. Ex. #2) The DER and Bay County have since been negotiating to bring the plant into compliance with the operation permit, and on April 13, 1989, Bay County and the DER agreed upon an administrative consent order. The consent order requires Bay County to submit an application for a temporary permit, to conduct tests, and to formulate a plan to bring the plant into compliance with its operation permit by July 1, 1991. The DER consent order also sets interim effluent limitations to be in effect until such time as future permit limitations are set. The interim limitations set out by the DER in the consent order are, generally, less stringent than the limitations set out by the EPA in the 1984 NPDES permit. The DER interim limitations on fecal coliform are substantially less stringent than the limitations set out in the 1984 NPDES permit.

II. Discussion

The Clean Water Act ("Act"), [33 U.S.C. §§ 1251-1376] makes it unlawful to discharge any pollutant into navigable waters except as authorized by the Act. 33 U.S.C. § 1311(a). The Act establishes the National Pollutant Discharge Elimination System (NPDES) and allows the EPA to issue NPDES permits authorizing the discharge of pollutants under specified conditions. 33 U.S.C. § 1342(a).¹ Rules promulgated under the Act establish procedures for dischargers to be heard on proposed conditions of a NPDES permit. See generally 40 C.F.R. § 124 (1988). Dischargers may also request a formal evidentiary hearing on disputed permit conditions. 40 C.F.R. § 124.74 (1988). If the EPA grants a discharger's formal request for an evidentiary hearing, the disputed conditions of the permit are stayed pending the EPA's final action on the matter. 40 C.F.R. § 124.16 (1988). While the disputed conditions are stayed, the corresponding conditions in the previous permit remain in effect. Id. A discharger may also seek review of a permit after issuance. 33 U.S.C. § 1369(b)(1). Dischargers may not, however, challenge the conditions of a valid NPDES permit in an enforcement proceeding. 33 U.S.C. § 1369(b)(2). Dischargers are strictly liable for violations of a NPDES permit, regardless of intent, unless the violations occurred as a result of an "upset." See 40 C.F.R. § 122.41(n)(1) (1988) (defining upset).

The Administrator of the EPA is empowered under the Act to enforce federal NPDES permits by imposing criminal penalties, civil penalties, and administrative penalties. 33 U.S.C. § 1319. The Act also provides that citizens may seek civil penalties in a suit to enjoin ongoing violations of a NPDES permit. 33 U.S.C. § 1365(a). Thus, citizen suits are a supplemental and alternative method of enforcement:

Citizen suits, which first appeared in the Clean Air Act on which the Clean Water Act was modeled, were intended by Congress "to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternative enforcement mechanism."

(citations omitted) Proffit v. Rohm & Haas, 850 F.2d 1007, 1011-12 [18 ELR 21165] (3d Cir. 1988).

The Act, however, bars citizen suits "if the [EPA] Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court . . . to require compliance with the standard, limitation or order . . ." 33 U.S.C. § 1365(b)(1)(B). Under a separate provision of the Act, citizen suit plaintiffs may not commence an action for civil penalties if the state has already commenced and is diligently prosecuting an action for civil penalties under a "state law comparable to this subsection." 33 U.S.C. § 1319(g)(6).

(A) Bay County's Motion for a Stay and for a Protective Order. Bay County contends that this case should be stayed because it will soon be moot. Specifically, Bay County argues that: (1) the disputed conditions of the 1984 permit were stayed by Bay County's formal request for a hearing; (2) its NPDES permit will be modified and renewed by the EPA in the next few months; and, (3) improvements will be made to the treatment plant pursuant to the terms of the DER consent order. Bay County also maintains that the doctrine of primary jurisdiction, as well as notions of fairness and judicial economy, compel the court to issue a stay. These arguments are without merit.

In Gwaltney v. Chesapeake Bay Foundation, Inc., 484 U.S. __, 108 S. Ct. __ , 98 L. Ed. 2d 306, 323 [18 ELR 20142] (1987), the Supreme Court of the United States examined the doctrine of mootness in the context of citizen suits under the Clean Water Act, and held that:

Longstanding principles of mootness, however, prevent the maintenance of [citizen] suit when "'There is no reasonable expectation that the wrong will be repeated.'" . . . In seeking to have the case dismissed as moot, however, the defendant's burden "is a heavy one." . . . The defendant must demonstrate that it is "absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur." . . . Mootness doctrine thus protects defendants from the maintenance of suit under the Clean Water Act based solely on violations wholly unconnected to any present or future wrongdoing, while it also protects plaintiffs from defendants who seek to evade sanction by predictable "protestations of repentance and reform." . . .

(citations omitted).

Bay County claims that the violations in this case are unconnected to any present or future wrongdoing; yet, the record indicates, and Bay County apparently does not deny, that it is currently discharging in excess of the limits set out in the 1984 permit. Thus, a simple application of the Gwaltney rule suggests that this case is not moot. Bay County argues, however, that the disputed conditions of the 1984 permit were stayed by its formal request for an evidentiary hearing. The Act, however, does not provide that permit conditions are stayed by a mere request for an evidentiary hearing. On the contrary, the Act clearly states that disputed conditions in a permit are stayed if the EPA grants a discharger's formal request for a hearing. 40 C.F.R. § 124.16 (1988).

Bay County apparently contends that even if the EPA did not formally grant Bay County's request for an evidentiary hearing, the EPA stayed the contested permit conditions when it proposed modifications to the 1984 permit. The proposed modifications were published, but were withdrawn by the EPA after the comment period.

The issue distills to whether the EPA's proposal of modifications to the 1984 permit stayed the contested permit conditions. The regulations promulgated under the Act are clear on stays of contested permit conditions: "Any facility or activity holding an existing permit must: (1) Comply with the conditions of that permit during any modification or revocation and reissuance proceeding under § 124.5." 40 C.F.R. § 124.16(c)(1) (1988).

It appears, however, that the EPA itself may have been confused on the issue of whether the 1984 permit conditions were stayed by the proposal of permit modifications. After the proposed modifications were withdrawn, an EPA official wrote Bay County a letter on April 11, 1988, stating that:

The evidentiary hearing requests contained in your October 29, and November 1, 1984 letters are still valid and those permit conditions for which you submitted evidentiary hearing requests are still stayed.

The problem with this letter is that EPA lacks the statutory authority to stay the contested permit conditions without granting Bay County's request for an evidentiary hearing. Although the record is not clear on whether the EPA formally denied Bay County's request for an evidentiary hearing, the burden is on Bay County to demonstrate that the EPA granted its request for a hearing, thus staying the contested permit provisions. The record contains no evidence of a formal notice by EPA granting the request.² I conclude [20 ELR 20870] that Bay County is not entitled to a stay based on its request for an evidentiary hearing.³

Furthermore, if the disputed conditions of the 1984 permit were stayed, the corresponding limitations in the 1980 permit would remain in effect. 40 C.F.R. § 124.16(c)(2) (1988). The record indicates that Bay County has been discharging in excess of the limitations set forth in both the 1980 permit and the 1984 permit.⁴ Bay County has not disputed the evidence indicating that it is discharging in excess of the limitations set out in both of the permits. Therefore, even if the disputed conditions in the 1984 permit are stayed, it appears that this case is not moot.

Bay County also claims that this case is moot because the 1984 permit will expire on October 31, 1989. The Act, however, does not require that the EPA immediately revise or re-issue a NPDES permit, and in fact, renewal or re-issuance of a NPDES permit may take years.⁵ During this time, the existing permit remains in effect. 5 U.S.C.A. § 558(c); 40 C.F.R. § 122.6(a) (1987). Moreover, the permit renewed or re-issued to Bay County may or may not contain less stringent limitations on discharge from the Military Point facility. Thus, even if the 1984 NPDES permit is renewed immediately upon its expiration, this case may not become moot.

Bay County also contends that this case should be stayed pending implementation of the FDER administrative consent order. As LEAF points out, however, implementation of the consent order would not bring the treatment facility into compliance with the NPDES permit, particularly with regard to the limitation on the discharge of fecal coliform. Moreover, the Act does not provide for the staying of enforcement actions pending the implementation of an administrative consent order. Citizen suits are preempted under the Act when a state commences a civil or criminal action in court [33 U.S.C. § 1365(b)], or commences an administrative action for administrative penalties [33 U.S.C. § 1369(g)]. Bay County admits that Florida has not commenced a civil or criminal action in court to enforce any permit conditions applicable to the Military Point facility. As to an administrative action for penalties, Florida's administrative enforcement provision does not authorize the imposition of administrative penalties. § 403.121(2), Fla. Stat. (1987). I conclude that the anticipated implementation of the DER consent order is not an adequate grounds for staying this case.

Regarding the doctrine of primary jurisdiction, Bay County recognizes that the doctrine should not be used to frustrate the congressional intent to broaden enforcement authority under the Act. The Act was designed with the intent that scientific and technical matters be resolved primarily by the EPA at the permitting stage. See S. Rep. No. 92-414, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News 3668, and 3745. In keeping with the statutory scheme, dischargers may not challenge the conditions of a valid NPDES permit in an enforcement action. 33 U.S.C. § 1369(b)(2). This case turns on the issue of whether Bay County has violated the applicable NPDES permits. The resolution of this issue does not involve a detailed inquiry into the scientific and technical basis of those permits. Thus, the doctrine of primary jurisdiction simply has no application in this case.

Lastly, Bay County argues that considerations of judicial economy and fairness require that a stay be issued in this case. Any such considerations, however, are outweighed by the strict mandates of the Act. I note, too, that this matter has been pending for several months in this Court, which should have allowed Bay County to accommodate these considerations. Bay County's motion for a stay is, therefore, DENIED. Since Bay County's motion for a protective order is based on the issuance of a stay, that motion is also, DENIED.

B. LEAF's Motion to Strike. LEAF has moved to strike Bay County's first, fourth, fifth, and sixth affirmative defenses. Motions to strike are disfavored, and will not be granted unless the defense is insufficient as a matter of law. See, e.g., Anchor Hocking Corp. v. Jacksonville Electric Authority, 419 F. Supp. 992, 1000 (M.D. Fla. 1976). If the defense raises substantial questions of law or fact, it should not be stricken. See e.g., United States v. 416.18 Acres of Land, 514 F.2d 627, 631 (7th Cir. 1975). Based on this standard, I find that Bay County's first, fifth, and sixth affirmative defenses should not be stricken at this time, for reasons discussed below.

Bay County's first affirmative defense is that LEAF has failed to state a claim on which relief can be granted. This defense is actually not an affirmative defense within the meaning of Rule 8(c) of the Federal Rules of Civil Procedure, but was presumably included in the complaint for the purpose of avoiding waiver of the right to file a motion to dismiss under Rule 12(b)(6). Bay County has not yet filed a motion to dismiss. Thus, any ruling on these matters would be premature.

Bay County's fourth affirmative defense is that this case is mooted by the DER administrative consent order. This defense is properly stricken for the reasons already discussed in reference to Bay County's motion for a stay.

Bay County's fifth affirmative defense is that the disputed conditions in the 1984 permit were stayed by Bay County's request for an evidentiary hearing. This defense should perhaps be stricken for the reasons previously stated in the discussion of Bay County's motion for a stay. However, there may be a substantial factual issue involved here. Under 40 C.F.R. § 124.74 (1988), the EPA is required to grant or deny all valid requests for evidentiary hearings. The record in this case does not contain either a notice of granting the request, or a notice of denying it. Under these circumstances, the matter must be left for consideration on a more developed record.

Bay County's sixth affirmative defense is that this case will be mooted by the EPA's renewal or re-issuance of the 1984 permit. I have already concluded that the pending expiration of the 1984 permit is not an adequate ground for staying this case. On the other hand, if the EPA issues the anticipated NPDES permit in a timely manner, I may want to reconsider the mootness issue.

Accordingly, LEAF's motion to strike is DENIED as to the first, fifth, and sixth affirmative defenses, and GRANTED as to the fourth affirmative defense.

DONE AND ORDERED this 27th day of October, 1989.

1. The Act also provides that each State may establish and administer its own NPDES permit program [33 U.S.C. § 1342(b)], but Florida has not done so.

2. Had EPA sent such a notice, a comment period would have begun and a hearing would have been scheduled pursuant to the timetable referenced in 40 C.F.R. § 124.75 (1988).

3. Bay County could perhaps argue, based on the April 11, 1988 letter, that the EPA is estopped from denying that the contested permit conditions were stayed. I note that this enforcement action was brought by LEAF, not by the EPA. Congress has clearly stated that citizen suits are a "supplemental" assurance that the Act will be enforced. See infra p.5. Therefore, even if estoppel applied against the EPA, it would not bar LEAF in this case.

4. See the data attached to the complaint. This data was allegedly compiled from the self-monitoring reports supplied by Bay County.

5. EPA did not renew Bay County's 1980 NPDES permit until three years after it expired.