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Feather v. United Mine Workers of America

argued: May 21, 1990.


Appeal from the United States District Court for the District of New Jersey; D.C. Civil No. 84-00340.

Scirica, Nygaard and Aldisert, Circuit Judges.

Author: Nygaard


NYGAARD, Circuit Judge

In this Clean Water Act citizen suit, the district court granted summary judgment to plaintiffs Public Interest Research Interest Group of New Jersey and Friends of the Earth (collectively "PIRG"), finding that defendant Powell Duffryn Terminals, Inc. ("PDT") had violated its National Pollution Discharge Elimination System ("NPDES") permit 386 times over a period of six years. After a bench trial on the issue of penalties, the district court permanently enjoined PDT from violating the terms of its NPDES permit and assessed $3,205,000 in civil penalties. Both parties appeal. We will affirm in part and reverse in part.

I. Background Facts and Procedural History

The Federal Water Pollution Control Act ("the Act") was enacted by Congress in 1972. The purpose of the Act is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" with the goal "that the discharge of pollutants into the navigable waters be eliminated by 1985." 33 U.S.C. § 1251(a)(1).

The Act provides an effective mechanism for monitoring and limiting polluting discharges. Section 301(a) flatly prohibits anyone from discharging any pollutant except as permitted by the Act. 33 U.S.C. § 1311(a). A person wishing to discharge into the navigable waters must obtain a National Discharge Elimination System ("NPDES") permit. 33 U.S.C. § 1342. These permits contain detailed limits (or parameters) on the types and concentrations of pollutants a permit holder may discharge. A person who complies with the permit parameters is deemed to comply with the Act. 33 U.S.C. § 1342(k). The Act further requires permittees to install and maintain equipment to test its effluent. 33 U.S.C. § 1318(a). The test results must then be reported to the Environmental Protection Agency ("EPA") on Discharge Monitoring Reports ("DMRs"). 40 C.F.R. §§ 122.41(j) & 122.48 (1989). A comparison of the permit limits with the reported concentrations quickly reveals whether a permittee is complying with its permit. Finally, the Act permits aggrieved citizens to sue permit violators. 33 U.S.C. § 1365.

PDT, a New Jersey corporation, is an NPDES permit holder operating a bulk storage facility in Bayonne, New Jersey. This tank farm is located on land adjacent to the Kill Van Kull, a navigable body of water. PDT uses the large tanks at the site to store various liquids owned by others. These liquids include petroleum products and industrial chemicals. When liquids are transferred, some spillage occurs. The spillage mixes with rainwater and the run-off pollutes the Kill Van Kull.

When PDT acquired the facility, it was subject to an injunction issued by the United States District Court for the District of New Jersey. United States v. El Dorado Terminals Corp., CA No. 77-228 (D.N.J. April 14, 1977). The injunction required the site owner to build a wastewater treatment plant by July 1, 1977 to treat the polluted run-off. After purchasing the facility, PDT did some remedial work at the site, mainly paving and constructing some ditches and dikes to channel the rainwater. PDT did not, however, construct the required wastewater treatment plant until 1987.

Since 1974, PDT (or its predecessor in interest) has held a series of NPDES permits which allowed it to discharge effluent into the Kill Van Kull. PDT's DMRs indicate that PDT (or its predecessor) has consistently and uninterruptedly dumped pollutants into the Kill Van Kull in concentrations greater than that allowed by its permit.

Plaintiffs are non-profit corporations concerned with environmental issues. On January 27, 1984, they filed a citizen suit against PDT pursuant to section 505 of the Act, 33 U.S.C. § 1365(a),*fn1 seeking a judgment of liability, civil penalties and injunctive relief, alleging that PDT was violating its NPDES permit. PIRG gave the required sixty-day notice of suit to the EPA and the New Jersey Department of Environmental Protection. 33 U.S.C. § 1365(b).

The district court bifurcated the case, with liability to be determined first and civil penalties and injunctive relief, if any, to be considered afterward. PIRG moved for summary judgment on the issue of PDT's liability. PDT opposed the motion, alleging that PIRG lacked standing and that material facts as to liability were in dispute.

The district court granted PIRG's motion for summary judgment in an order dated January 13, 1986, finding that PIRG had standing and that PDT had violated its NPDES permit 154 times from July, 1977 to June, 1984. Student Public Interest Group of New Jersey, Inc. v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074 (D.N.J. 1986) ("PIRG I"). PIRG submitted another motion for summary judgment alleging that PDT continued to violate its permit during the litigation. On March 13, 1987, the district court granted summary judgment to PIRG on an additional 46 violations.

PIRG moved for a preliminary injunction on May 17, 1988 to enjoin further permit violations by PDT. The district court denied this motion in part because PIRG had failed to demonstrate that irreparable harm was imminent.

PIRG filed its third and final motion for summary judgment on liability on December 29, 1988, alleging an additional 190 violations. Four items were erroneously included and PIRG later removed them from the list. PDT again opposed summary judgment. On May 4, 1989, the first day of the bench trial on penalties, the district court granted PIRG's motion for summary judgment, bringing the total number of PDT's violations to 386.

Following a one week bench trial on the issue of penalties, the district court found that PDT had consistently violated its permit and should be assessed the maximum penalty. Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 720 F. Supp. 1158 (D.N.J. 1989) ("PIRG II"). The court based the fine on the seriousness of the violations, the large economic benefit reaped by PDT by delaying compliance, the lack of good faith efforts by PDT to comply with its NPDES permits and the fact that the penalty would not threaten PDT's economic survival. After calculating the maximum penalty to be $4,205,000,*fn2 the district court reduced the penalty by $1,000,000 because the EPA and the NJDEP had failed to diligently prosecute PDT. The district court ordered PDT to pay the $3,205,000 into a trust fund to be used for improving the environment in New Jersey. Finally, the district court entered a permanent injunction prohibiting PDT from violating its permit. PIRG II, 720 F. Supp. at 1168.

PDT contends that the district court erred by failing to dismiss the case because the plaintiffs lack standing, by failing to apply a five year statute of limitations and by granting summary judgment on liability. PDT also contends that the district court's factual findings supporting the award of civil penalties are clearly erroneous and that the injunction is overbroad. PIRG contends that the nonfeasance of the EPA and the NJDEP is an illegitimate basis for reducing the penalty. Although the EPA was not a party below, we permitted the EPA to intervene to contest the creation of a private trust fund with the civil penalties.

II. Standing

The requirement that a party have standing flows from the Article III requirement of a "case or controversy."*fn3 U.S. Const. art. III, § 2, cl. 1. Standing analysis focuses on whether "a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy." Sierra Club v. Morton, 405 U.S. 727, 732, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). PIRG seeks to represent the interests of its members. Such "representational standing" is appropriate where 1) the organization's members would have standing to sue on their own, 2) the interests the organization seeks to protect are germane to its purpose, and 3) neither the claim asserted nor the relief requested requires individual participation by its members. See Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977); Automobile Workers v. Brock, 477 U.S. 274, 91 L. Ed. 2d 228, 106 S. Ct. 2523 (1986). PDT contends that PIRG's individual members would not have standing to pursue this suit on their own, so PIRG lacks standing to sue.

For individual standing, the Supreme Court states that:

at an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," . . . and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision. . . ."

Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (citations omitted). PDT argues that PIRG failed to establish injury in fact, failed to trace any injury to PDT's conduct and failed to show how this lawsuit could redress any of PIRG's injury. The district court found otherwise. See PIRG I, 627 F. Supp. at 1081-83. PDT originally challenged PIRG's standing in a motion to dismiss. Since additional evidence was submitted on this issue, the district court properly treated the motion as one for summary judgment. Fed. R. Civ. P. 12(b). The district court decided that PIRG had standing and refused to dismiss the action. In reviewing this decision, we view the evidence in the light most favorable to PIRG, the non-moving party. Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir. 1988). Our review of this essentially legal question is plenary.

A. Injury in Fact

PIRG asserted generally in its complaint that its members resided in the vicinity of or owned property on or near the Kill Van Kull, or recreated on or near the Kill Van Kull. Complaint paras. 7, 9, Joint App. p. 44-45. PIRG supported these assertions by submitting affidavits from five members. All affiants state that they are members of one of the plaintiff organizations and reside in the vicinity of the Kill Van Kull. The affiants state that they hike, jog or bicycle along the shores of the Kill Van Kull. Several affiants state that they recreate in the Kill Van Kull Park, a public park located approximately two miles downstream of PDT. Although no affiant actually boated on the Kill Van Kull, apparently because of the foulness of the water, several indicated that they would boat, fish or swim there if the water were cleaner.*fn4 See e.g. Affidavit of Sheldon Abrams, Joint App. p. 2425.

The affiants claimed injury to their aesthetic and recreational interests because the Kill Van Kull is polluted. The affidavit of Douglas MacNeil represents the types of interests asserted. Mr. MacNeil lives in Westfield, N.J. and is a member of FOE. He stated that he hikes and birdwatches several times per year at the Kill Van Kull park, a park adjacent to the Kill Van Kull. Mr. MacNeil was particularly offended by the brown color and bad odor of the water. He stated that he would birdwatch more frequently and enjoy his recreation on the Kill Van Kull more if the water were cleaner.

These affidavits state an injury sufficient to satisfy the requirements of Article III. As the Supreme Court noted in Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972), harm to aesthetic and recreational interests is sufficient to confer standing. Sierra Club, 405 U.S. at 735; Middlesex County, 453 U.S. 1, 16-17, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). These injuries need not be large, an "identifiable trifle" will suffice. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 37 L. Ed. 2d 254, 93 S. Ct. 2405 . The interests asserted by the plaintiffs in this case are more than trifles. The pollution in the Kill Van Kull has interfered with these plaintiffs' enjoyment of this natural resource. Since PDT has not introduced any evidence to suggest that the affiants have not legitimately stated injuries in fact to their aesthetic and recreational interests in the Kill Van Kull. PIRG has satisfied the first prong of the Valley Forge test. Accord Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir. 1985) (affidavit by FOE member was sufficient to confer standing on organization where member stated that he drove on bridge over body of water and was offended by its appearance).

B. Fairly Traceable

PDT contends that PIRG has failed to demonstrate that the injuries suffered by its members are fairly traceable to PDT's exceedances of its NPDES permit. In support of its motion for summary judgment on this issue, PDT submitted the affidavit of LeRoy Sullivan, an engineering consultant, who stated that to "a reasonable scientific certainty . . . [PDT's] operations do not adversely affect water quality in the Kill Van Kull at or about the Kill Van Kull Park. . . . It is also my opinion that [PDT's] operations do not adversely affect water quality in the Kill at any other location except perhaps in some purely speculative and theoretical way." Affidavit of LeRoy Sullivan, p. 2, Joint App. p. 93. PDT also submitted the affidavit of Allen Dresdner, a professional planner and consultant, who testified to the heavily industrialized character of the Kill Van Kull and stated his opinion that the poor water conditions complained of by the plaintiffs did "not originate from Powell Duffryn nor are they related to Powell Duffryn's discharges." Affidavit of Allen Dresdner, p. 18, Joint App. p. 126.

In denying PDT's motion for summary judgment,*fn5 the district court stated that PIRG could "show causation merely by showing violations of the discharge permits." PIRG I, 627 F. Supp. at 1083. PDT asserts that this is an erroneous statement of the law of standing and that Valley Forge and its progeny require a close causal link between the content of a defendant's effluent and the harm complained of by the plaintiffs.*fn6 Although we agree that a permit exceedance alone is not sufficient to satisfy the second prong of Valley Forge, the facts are sufficient here to trace PIRG's injuries to PDT's discharges.

The requirement that plaintiff's injuries be "fairly traceable" to the defendant's conduct does not mean that plaintiffs must show to a scientific certainty that defendant's effluent, and defendant's effluent alone, caused the precise harm suffered by the plaintiffs. A plaintiff need not prove causation with absolute scientific rigor to defeat a motion for summary judgment.*fn7 The "fairly traceable" requirement of the Valley Forge test is not equivalent to a requirement of tort causation. Cf. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 78, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978).

The standing requirement ensures that parties will not "convert the judicial process into 'no more than a vehicle for the vindication of the value interests of concerned bystanders.'" Valley Forge, 454 U.S. at 473 (quoting United States v. SCRAP, 412 U.S. 669, 687, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973)). In order to demonstrate that they are more than "concerned bystanders," plaintiffs need only show that there is a "substantial likelihood" that defendant's conduct caused plaintiffs' harm. Duke Power Co., 438 U.S. at 75 n. 20 (1978). In a Clean Water Act case, this likelihood may be established by showing that a defendant has 1) discharged some pollutant in concentrations greater than allowed by its permit 2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and that 3) this pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.*fn8

This will require more than showing a mere exceedance of a permit limit. Thus if a plaintiff has alleged some harm, that the waterway is unable to support aquatic life for example, but failed to show that defendant's effluent contains pollutants that harm aquatic life, then plaintiffs would lack standing. In this case, several affiants stated that the water had an oily or greasy sheen they found offensive.*fn9 PDT's permit contained limits on the oil and grease PDT could discharge in its effluent. Joint App. p. 2154. PDT's reports to the EPA indicate that PDT has discharged oil and grease in excess of these limits. Thus the aesthetic injury suffered by the plaintiffs may fairly be traced to PDT's effluent.*fn10 PIRG has satisfied the second prong of the Valley Forge test.

C. Redressability

The final prong of the Valley Forge test requires that plaintiffs demonstrate that their injuries are "likely to be redressed by a favorable decision." Valley Forge, 454 U.S. at 472 (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976)). This requirement is closely related to the "fairly traceable" element. While the fairly traceable element focuses on the connection between the defendant's conduct and the plaintiff's injury, the redressibility factor focuses on the connection between the plaintiff's injury and the judicial relief sought. Allen v. Wright, 468 U.S. 737, 753 n. 19, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). PDT argues that PIRG has failed to demonstrate how civil penalties and injunctive relief could redress the injuries complained of by PIRG's members. PDT is simply wrong.

The purpose of the Act is to restore the chemical, physical and biological integrity of the nation's waters. Where a plaintiff complains of harm to water quality because a defendant exceeded its permit limits, an injunction will redress that injury at least in part. If PDT complies with its permit, the pollution in the Kill Van Kull will decrease. Plaintiffs need not show that the waterway will be returned to pristine condition in order to satisfy the minimal requirements of Article III.

There is also a connection between civil penalties and the injuries to PIRG's members. Where Congress has expressly granted a right of action and plaintiffs have shown "a distinct and palpable injury," plaintiffs "may invoke the general public interest in support of their claim." Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 . The general public interest in clean waterways will be served in this case by the deterrent effect of an award of civil penalties. Penalties will deter both PDT specifically and other NPDES permit holders generally. Thus PIRG's members' injuries may be redressed by a favorable decision in this case. See Student Public Interest Group of New Jersey, Inc. v. AT & T Bell Laboratories, 617 F. Supp. 1190, 1200-1 (D.N.J. 1985), accord Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 695 (4th Cir. 1989), Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109 (4th Cir. 1988), cert. denied, 491 U.S. 904, 105 L. Ed. 2d 693, 109 S. Ct. 3185 (1989). Under current constitutional requirements this plaintiff has standing.

III. Statute of Limitations

The district court held that no statute of limitations should apply to citizen suits brought under the Act because to do so would contravene the substantive federal policy of the Act. PDT argues that the five year federal statute of limitations contained in 28 U.S.C. § 2462 should apply.*fn11 PIRG does not attempt to defend the district court's reasoning, but nonetheless contends that no statute of limitations should apply. PIRG argues that since section 510*fn12 of the Act, 33 U.S.C. § 1370, authorizes states to impose more stringent requirements on polluters than those provided by federal law, and since New Jersey imposes no limitations on similar actions brought under state environmental laws, see New Jersey Department of Environmental Protection v. Ventron Corp., 182 N.J. Super. 210, 440 A.2d 455, 463 (1981), aff'd, 94 N.J. 473, 468 A.2d 150 (1983), the more stringent state procedural rule should control.

The Act contains no relevant statute of limitations.*fn13 Ordinarily, we would look to state law and borrow the most relevant state limitations period. Del Costello v. International Bhd. of Teamsters, 462 U.S. 151, 158, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). But where state statutes of limitation are "unsatisfactory vehicles for the enforcement of federal law . . ., it may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law." Id. at 161. Especially where there is a relevant federal statute of limitations, courts need not borrow from state law. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1977), Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975).

The federal statute identified by PDT in this case is relevant, because citizen suits under the Act are brought to enforce a civil fine. By its terms, it would apply to an EPA proceeding under the Act. See Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1521 (9th Cir. 1987). Since plaintiffs in a citizen suit are acting as an adjunct to government enforcement actions, Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S. Ct. 376, 383, 98 L. Ed. 2d 306 (1987), citizens should be subject to the same limitations period as the government. The Act envisions a scheme whereby citizen suits supplement government efforts. Thus applying a different state law could frustrate this scheme by allowing citizens to bring suits where the government would be barred or vice versa.

The Court of Appeals for the Ninth Circuit has employed similar reasoning in Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517 (9th Cir. 1987) to conclude that section 2462, rather than the California statute of limitations contained in the Porter-Cologne Water Quality Act, Cal. Code Civ. Proc. § 338(9), should apply to citizen suits under the Act. Analogizing a Clean Water Act citizen suit to a government enforcement or qui tam action, the court noted that citizen suit plaintiffs do not personally benefit from the suit. Since citizen plaintiffs "effectively stand in the shoes of the EPA," the court concluded that the federal statute of limitations should apply. Sierra Club v. Chevron U.S.A., Inc., 834 F.2d at 1522. This holding is consistent with decisions in other jurisdictions. See e.g. Atlantic States Legal Foundation v. Al Tech Specialty Steel Corp., 635 F. Supp. 284, 287 (N.D.N.Y. 1986), Connecticut Fund for the Environment v. Job Plating Co., 623 F. Supp. 207, 213 (D.Conn. 1985), Friends of the Earth v. Facet Enterprises,Inc., 618 F. Supp. 532, 536 (W.D.N.Y. 1984).*fn14

PIRG attempts to distinguish the decisions applying section 2462 by noting that they all involved state limitations periods shorter than that provided by section 2462. Thus, PIRG argues, no decision resolved the question of whether section 510 of the Act allows a state to adopt a longer limitations period than that allowed by federal law.

We are not persuaded that section 510 of the Act allows a state to adopt its own statute of limitations for citizen suits. The language of this section allows states to adopt "any requirement respecting control or abatement of pollution," so long as that requirement is not less stringent than the federal requirements. 33 U.S.C. § 1370(1)(B). We read this language as affording states considerable flexibility in setting more stringent effluent standards. Only a strained reading of this section would authorize states to set their own limitations periods for citizen FWCPA suits. Particularly since the right of citizens to sue under the Act was granted by Congress with the intent "to supplement rather than supplant governmental action," Gwaltney, 108 S. Ct. at 383, we conclude that section 510 does not implicitly authorize states to allow citizen suits where the EPA itself would be time barred.*fn15

PIRG argues that if a five year statute of limitations is applied to this action, the time period should begin when the defendant filed its DMRs rather than at the time of the discharge. This makes sense since the responsibility for monitoring effluent rests with the defendant, 33 U.S.C. § 1318(a)(4)(A), and the public cannot reasonably be deemed to have known about any violation until the permit holder files its DMRs. Thus we hold that the five year statute of limitations period does not begin to run until the DMRs listing the violations are filed. Accord Atlantic States Legal Found. v. Al Tech Specialty Steel Corp., 635 F. Supp. 284, 287 (N.D.N.Y. 1986).

The Act requires citizen plaintiffs to give sixty days notice to the EPA and the state where the alleged violations occurred before filing a complaint. 33 U.S.C. § 1365(b)(1)(B). PIRG urges that the limitations period should be tolled from the time the plaintiffs file their sixty day notice letter until the complaint is filed. Since prior notice to an administrative agency is a jurisdictional prerequisite to filing suit, cf. Proffitt v. Rohm & Haas, 850 F.2d 1007, 1011 (3d Cir. 1988), equitable considerations favor tolling the statute of limitations during the sixty days while the EPA considers whether to prosecute. We see no reason why citizen plaintiffs should be faced with what is effectively a two month shorter limitations period than that binding the EPA.*fn16 Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1524 (9th Cir. 1987). The statute should not, however, be tolled until the lawsuit is actually filed. That would permit citizens to file their sixty day notice and then delay filing the actual lawsuit as long as they wished, effectively extending the limitations period beyond that applicable to the government. Id. at 1524 n. 5. Thus, we conclude that the statute of limitations is tolled only for the statutory sixty day notice period. We will reverse the district court to the extent it held that no statute of limitations applies to citizen suits under the Act and remand for adjustment of the penalty award.*fn17

IV. Summary Judgment on Liability

In reviewing a grant of summary judgment, we apply the same test as the district court should have used initially. Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir. 1988). PDT raises numerous objections to the summary judgment on the issue of liability. Although characterized by PDT as disputes of fact, the objections are actually disputes of law.*fn18 We will consider each objection in turn.

A. The Single Operational Upset Defense

When Congress amended the Act in 1987, it added the following language to sections 309(c)(5), (d), & (g)(3):

For purposes of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation.

33 U.S.C. § 1319(c)(5), (d), & (g)(3).*fn19

PDT seizes upon this language and argues that, in all instances where one discharge violated more than one permit parameter, the district court erred by finding liability for more than one violation. PDT claims that this language indicates Congress intended that simultaneous violations in a single non-complying discharge constitute only a single violation.

We note initially that the single operational upset ("SOU") defense is not a defense to liability, but relates only to the amount of penalties the district court may impose.*fn20 The SOU defense is contained in subsections relating to calculation of penalties, see e.g. 33 U.S.C. § 1319(d), and by its terms it is limited to the subsection in which it is contained. Thus even if we were to find that PDT was entitled to invoke the SOU defense, this would not preclude summary judgment on liability. Since it could effect the calculation of penalties, we will consider PDT's argument. For the reasons that follow, we conclude that PDT is not entitled to the SOU defense.*fn21

We do not agree with PDT that the SOU defense indicates Congress intends that any single discharge which violates several permit parameters be counted as a single violation.*fn22 The statute states that a "single operational upset," not any "single non-complying discharge," should be counted as one violation. While neither the statute nor the legislative history further define "single operational upset," we conclude that an "upset" means some unusual or extraordinary event. We are guided in our interpretation of this ambiguous statutory language by the reasonable interpretation given this term by the EPA. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984).

The EPA has defined "single operational upset" as:

An exceptional incident which causes simultaneous, unintentional, unknowing (not the result of a knowing act or omission), temporary noncompliance with more than one Clean Water Act effluent discharge pollutant parameter. Single operational upset does not include . . . noncompliance to the extent caused by improperly designed or inadequate treatment facilities.

EPA Guidance Interpreting "Single Operational Upset," Addendum B to Brief of Intervenor EPA at p. 9.

This Guidance further defines an "exceptional" incident as a "non-routine malfunctioning of an otherwise generally compliant facility." Id.

PDT introduced no evidence that the violations in this case were the result of anything except PDT's own recalcitrance. There was no evidence that a sudden violent storm, or bursting tank, or other exceptional event caused these exceedances. It is disingenuous at best for PDT to argue that it was in a near continual state of operational upset for the six years of violations involved in this suit. ...

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