Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.
629 F.3d 387
| 4th Cir. | 2011Background
- FOE and CLEAN sued Gaston Copper Recycling under the Clean Water Act for alleged permit violations in South Carolina related to discharges into Lake Watson and downstream waters.
- Plaintiffs issued a July 13, 1992 notice letter under 33 U.S.C. § 1365(b) detailing Phase I and Phase II effluent limit violations, monitoring, reporting failures, and delays in the schedule of compliance.
- Gaston contested standing and the district court conducted a bench trial in 1995; in 1998 the district court dismissed for lack of standing.
- On en banc review, Gaston I reversed, and remanded for further factual development; on remand the district court found Phase I/II violations and numerous monitoring and reporting violations, and assessed civil penalties.
- Before judgment, CLEAN member William Shealy died; the district court later held standing could continue through Jones (FOE/CLEAN member) and McCullough, Jr.
- Gaston appeals arguing lack of standing after Shealy’s death, improper penalties for violations not in the notice letter, and penalties for wholly past violations; the Fourth Circuit affirms in part, reverses in part, and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing through Jones after Shealy's death | Jones' use of the affected waters gave FOE/CLEAN standing. | Plaintiffs lacked continuing standing after Shealy's death without direct use by Jones. | Standing through Jones established; plaintiff had injury in fact and standing to sue. |
| Penalty awards for violations not identified in notice letter | Notice complied with § 1365(b) and 40 C.F.R. § 135.3(a); penalties proper. | Notice letter failed to identify certain violations, so penalties were improper. | District court erred in imposing penalties for violations not alleged in the notice letter. |
| Adequacy of notice for Phase II violations (pH and copper) and other pollutants | Notice adequately alleged ongoing Phase II violations for pH and copper; other pollutants not required to be listed then. | Notice did not adequately identify Phase II violations for cadmium, zinc, iron, or oil and grease. | Phase II pH and copper violations adequately alleged; cadmium, zinc, iron, oil and grease violations not adequately alleged and reversed as to those. |
| Wholly past violations and district court jurisdiction for penalties | Some violations continued beyond filing and were ongoing. | Wholly past violations should not support penalties. | Penalties for 54 days of schedule-of-compliance violations wholly past at filing were improper; district court lacked jurisdiction for those penalties. |
Key Cases Cited
- Laidlaw Environmental Services, Inc. v. Hayes, 528 U.S. 167 (U.S. 2000) (standing may be established by use and enjoyment of the affected area)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (injury in fact must be concrete and particularized)
- Hallstrom v. Tillamook County, 493 U.S. 20 (U.S. 1989) (notice requirements are mandatory preconditions to suit)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (U.S. 1987) (notice and delay provisions serve enforcement and compliance goals)
- Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir. 2001) (notice must inform violator of each targeted violation and distinguish pollutants)
- Pub. Interest Research Group of New Jersey, Inc. v. Hercules, Inc., 50 F.3d 1239 (3d Cir. 1995) (adequacy of notice not require listing every detail)
- Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 694 (4th Cir. 1989) ( Gwaltney clarifies continuing violation concept in Gwaltney line)