Thursday, January 6, 2011

Friends of the Earth, Inc. v. Gaston Copper

Jan 5: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-1714. Appeal from the United States District Court for the District of South Carolina, at Columbia. In the appeal, the Appeals Court considered whether Friends of the Earth, Inc. (FOE) and Citizens Local Environmental Action Network, Inc. (CLEAN), (collectively, the plaintiffs), maintained standing to prosecute a citizen suit asserting violations of the Clean Water Act against Gaston Copper Recycling Corporation (Gaston). The Appeals Court concluded that the plaintiffs established standing to sue through FOE and CLEAN member Guy Jones.
    The Appeals Court also considered Gaston's argument challenging the district court's imposition of penalties. Gaston argued that the district court erred: (1) in imposing penalties against Gaston for violations not contained in the plaintiffs'
pre-suit "notice letter" required by 33 U.S.C. § 1365(b); and (2) in imposing penalties against Gaston for violations allegedly "wholly past," contrary to the requirement set forth in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64 (1987), that citizen suits brought under the Clean Water Act may only assert ongoing violations.
    The Appeals Court held that, "the district court erred in imposing certain penalties against Gaston. We affirm in part and reverse in part the district court's judgment, and remand the case." In its conclusion the Appeals Court said, "In conclusion, we hold that the plaintiffs maintained standing throughout their suit in the district court; that based on the legal insufficiency of portions of the notice letter, the district court erred in finding violations and imposing penalties for all but the three violations for pH and copper . . . and that the district court erred in assessing penalties for 54 days of violations that were 'wholly past' when the plaintiffs filed their complaint. Accordingly, we affirm the part of the district court's judgment relating to the Phase II violation for pH occurring on October 15, 1993, and to the Phase II violations for copper occurring on October 5, 1993 and March 22, 1994, and the accompanying penalties imposed for those three violations; we reverse the balance of the district court's findings of violations and the court's imposition of penalties for those violations; and we remand the case for further proceedings consistent with our opinion."
    Access the complete opinion (click here).