Northwest Environmental Defense Center v. Unified Sewerage Agency of Washington County

No. 88-1128-HO (D. Or. July 26, 1990)

The court holds that a consent decree in which a municipal sewer agency agrees to pay $ 1 million properly resolves claims brought in a citizen suit under the Federal Water Pollution Control Act (FW-PCA), even though no provision is made for payment to the U.S. Treasury. The decree requires an expenditure of approximately $ 50 million by the sewer system operator to bring the system into compliance with the FWPCA. The decree also requires the sewer agency to pay $ 100,000 to a state environmental quality agency to fund enforcement staff positions and $ 900,000 to an endowment fund created to restore river basin waters. The court holds that the terms of the consent [21 ELR 20677] decree constitute a penalty within the meaning of the FWPCA, even though payment will not be made to the U.S. Treasury. The court also holds that the decree fulfills the FWPCA's purpose of improving water quality.

[Pleadings in this case are digested at ELR Pend. Lit. 66101.]

Counsel for Plaintiffs
Mary Kyle McCurdy
Mitchell, Lang & Smith
2000, One Main Place, 101 S.W. Main St., Portland OR 97204
(503) 221-1011

Counsel for Defendants
Paul T. Fortino
Perkins Coie
U.S. Bancorp Tower, Ste. 2500, 111 S.W. Fifth Ave., Portland OR 97204
(503) 295-4400

Hogan, J.:

Opinion

This is an action brought pursuant to the Clean Water Act, 33 U.S.C. § 1365, by certain individuals and citizen groups against the United Sewerage Agency of Washington County. Plaintiffs allege numerous contaminations of the water quality of the Tualatin River basin in violation of the Clean Water Act. Defendant operates a number of historically separate sewerage systems upon which time and rapid development have conferred a community of interest.

After two years of litigation and complicated, sensitive, and lengthy settlement discussions conducted under the court's supervision, the parties have agreed to an exhaustive proposed consent decree which resolves all pending issues of this action.

The proposed consent decree was then submitted to the United States of America for comment pursuant to 33 U.S.C. § 1365(c)(3). The United States Department of Justice, Land and Natural Resources Division, has objected to certain provisions of the consent decree.

The consent decree in this case requires compliance with Clean Water Act standards, which the parties estimate will necessitate approximately 50 million dollars in capital improvements to defendant's sewerage system, spells out extensive compliance provisions, and requires the payment of an additional $ 1,000,000 by defendant. Of this $ 1,000,000, $ 100,000 will be paid to the state of Oregon to fund additional staff positions for the Oregon Department of Environmental Quality to utilize in enforcing compliance with the decree and $ 900,000 will be apid into an endowment fund created to restore, enhance, and maintain the waters of the Tualatin River basin and the state of Oregon in ways which cannot be mandated under the Clean Water Act.

The United States complains that there is not a sufficient penalty aspect of the proposed consent decree, as compared to its injunctive and rehabilitative aspects. The position of the United States is that a penalty is not a penalty under the Clean Water Act unless it provides for the direct payment of money to the Treasury. Other changes to the proposed consent decree suggested by the United States concerning the compliance provisions of the decree have been accepted by the parties.

I find that the noted $ 1,000,000 payment by defendant constitutes a penalty. None of this money will go to the plaintiffs or any organizations with which they are involved. Hugh additional sums will be expended by defendant to "fix" the sewerage system so that future Clean Water Act violations do not occur. Those expenditures are necessary to the injunctive aspects of the decree. The additional $ 1,000,000 payment, however, is to fund further enforcement by the state of Oregon and improve water quality in the Tualatin River basin in ways which could not be judicially mandated.

The purpose of the Clean Water Act is to improve water quality, not endow the Treasury. What better use of the penalty type payments in an action like this than to facilitate water quality improvements to the affected watershed in ways which could not be required under law. These additional enhancements to water quality, the payment for which also serves as a hefty sanction to defendant, fully meet congressional intent that there be penalty aspects of Clean Water Act consent decrees to discourage other polluters.

The proposed consent decree here accomplishes other important and worthwhile purposes. It allows rehabilitation of the resource to begin immediately, rather than suffer possible future pollutant insult and/or exacerbation during months or years more of litigation. This is one of the important reasons that courts should encourage settlement of these actions. Settlements, like that proposed here, fully meet the intent of Congress in providing the Clean Water Act as a friend and protector of our precious natural water resources. The litigants will now become cooperative partners in protecting water quality rather than merely remaining opposing litigants in a court battle, which, without more, offers little utility.

Finally, the proposed consent decree was negotiated with the ongoing extensive input and acknowledgement of a non-party, the Department of Environmental Quality of the state of Oregon, which will serve almost exclusively as the compliance authority for defendant's various facilities. This cooperation by an essential non-party is commendable and necessary to enable reliable, progressive, measurable solutions to the water quality problems of the Tualatin River basin addressed by this action.

The objections of the United States to the penalty provisions of the proposed consent decree are denied and the decree will be entered forthwith.