The opinion of the court was delivered by: JOAN B. GOTTSCHALL
This matter is before the court on defendant's motion to dismiss this citizens' action under the Federal Water Pollution Control Act ("Clean Water Act" or "Act"), 33 U.S.C. § 1251 et seq. Alternatively, defendant would have the court stay the action until the completion of certain administrative proceedings before the Metropolitan Water Reclamation District of Greater Chicago ("the MWRD"). For the reasons set forth below, the motion is denied.
Defendant PMC, Inc., through its subsidiary PMC Specialties Group, owns and operates a facility at 735 East 115th Street in Chicago, Illinois. The facility is used for organic chemical manufacturing. Defendant discharges wastewater to MWRD's Calumet Wastewater Reclamation Plant ("Calumet WRP"), which later discharges wastewater into the Little Calumet River after treatment. Plaintiffs contend that each day defendant discharges approximately 1,600,000 gallons of contaminated wastewater into the Calumet WRP. Since treatment in the WRP does not remove all toxic chemicals, the discharge affects the quality of wastewater discharged by the Calumet WRP into the Little Calumet River. According to plaintiffs, since April 1990 or before, defendant's wastewater has contained pollutants in excess of the discharge limits under the Act.
Plaintiffs describe the relationship between the MWRD and the applicable statutory framework in their complaint. They allege that the MWRD is a publicly owned treatment works ("POTW") under regulations implementing the Act. 40 C.F.R. § 403.3(o).
As a POTW discharging pollutants directly into the waters of the United States, the MWRD must obtain from the United States Environmental Protection Agency ("the USEPA") or from an authorized state agency a National Pollution Discharge Elimination System (NPDES") permit. Such a permit specifically authorizes and limits the discharge of particular pollutants. The Calumet WRP, then, must be operated in compliance with discharge limits under the Act.
Corporations like defendant that initially discharge pollutants into a wastewater treatment plant must also comply with the discharge limits under the Act. According to plaintiffs, those limits, called industrial pretreatment standards, are developed by the USEPA (based on the industrial category of the discharge) or an authorized POTW (here the MWRD) or both. The USEPA industrial pretreatment standards applicable to defendant's operations are the chemical manufacturing pretreatment standards at 40 C.F.R., Part 414. In addition, defendant is subject to the MWRD's own industrial pretreatment standards or "local limits" for companies that discharge into the Calumet WRP. The MWRD's Sewage and Waste Control Ordinance ("the Ordinance") sets forth local limits which are enforceable under § 307(d) of the Act as pretreatment standards. 40 C.F.R. § 403.5(d). The USEPA pretreatment standards are also incorporated into the Ordinance at Appendix C. In this lawsuit, plaintiffs seek penalties for defendant's alleged failure to comply with the USEPA's pretreatment standards, as well as the MWRD's local limits. Injunctive relief is also requested.
As required under Act § 505(b)(1)(A), 33 U.S.C. § 1365(b)(1)(A), on or around June 15, 1992, plaintiffs served a 60-day notice of their intention to bring this suit on defendant, the USEPA, and the Illinois Environment Protection Agency ("the IEPA"). The lawsuit was filed on August 18, 1992, naming PMC Specialties Group as defendant. Subsequently, the complaint was amended on September 24, 1992 to name PMC, Inc. as defendant. There having been no substantive changes to the complaint, nor allegations of unfair surprise or prejudice, the date the original complaint was filed is the date used in determining questions of timing under § 505. Chesapeake Bay Foundation, Inc. v. Bethlehem Steel Corp., 652 F. Supp. 620, 628 (D. Md. 1987); Sierra Club v. Simkins Industries, Inc., 617 F. Supp. 1120, 1126 (D. Md. 1985), aff'd, 847 F.2d 1109 (4th Cir. 1988), cert. denied, 491 U.S. 904, 105 L. Ed. 2d 694, 109 S. Ct. 3185 (1989).
Neither the USEPA nor IEPA has instituted proceedings against defendant to redress the violations complained of in this lawsuit. However, before the filing of the complaint, the MWRD issued a notice of show cause hearing on June 29, 1992. In that notice, the MWRD stated its determination that discharges from defendant's facility violated the discharge limits under its Ordinance. Reply Brief, Ex. B. Later, on September 4, 1992, an amended notice of show cause hearing was issued, incorporating claims for additional violations on June 22, July 5, and August 11, 1992. Memorandum in Support of Motion to Dismiss, Ex. B.
Defendant resisted the MWRD's action by arguing that its ultimate wastewater discharge is actually a mixture of several discrete flows, not all of which flows are generated by its regulated processes. Because its process effluent is mixed with unregulated flows prior to treatment, defendant claims that it is entitled to the benefit of alternative discharge limits, which may be computed by the MWRD or by defendant with the written concurrence of the MWRD. 40 C.F.R. § 403.6(e). Defendant states that under applicable regulations, only the MWRD has the authority to determine whether streams should be classified as diluted or unregulated under the USEPA's combined wastestream formula.
Throughout the MWRD administrative proceedings, defendant has taken the position that the alleged discharge violations are attributable to sources beyond its control, including soil and ground-water contamination. Following negotiations, the MWRD and PMC entered into an Interim Consent Order ("ICO") in December 1992.
The ICO contains statements of the parties' agreement that it was necessary to derive alternative limits for application to defendant's mixed effluent and that the accurate calculation of defendant's alternative discharge limits was a critical step in determining what, if any, additional pretreatment was needed at defendant's facility. ICO, PP 14, 17. Defendant agreed to implement a work plan that would gather information needed to recalculate appropriate alternative discharge limits. ICO, P 18. For its part, the MWRD allowed "that the implementation of the Work Plan is an appropriate action to take in light of the circumstances." ICO, P 19. The MWRD was also designated the only entity with authority to approve alternative discharge limits. ICO, P 16. A provision for facility monitoring further provided that defendant would reimburse the MWRD for its sampling costs. ICO, P 23. Defendant was to complete its study by February 4, 1993, after which date the MWRD would reevaluate alternative discharge limits in light of the completed study. At that time, the parties would make a good faith effort to negotiate a final resolution to this matter, including the appropriate calculation of stipulated penalties for past violations. The parties agreed that prosecution of the notice to show cause would be continued until after February 4, 1993. ICO, P 26.
The ICO contains no admission of liability and the parties expressed a preference that the matter be resolved without resort to adversarial proceedings. See ICO at 1. While provision was made for stipulated penalties if discharges were ultimately determined to exceed local limits or limits set by the USEPA, penalties were for the most part set at a maximum of $ 200 per day of violation. ICO, PP 24-25. There is no provision for an injunction in the ICO.
As of the date of this opinion, there apparently has been no final determination in the MWRD proceedings, even though defendant ...