Appeal from the United States District Court for the Eastern District of Wisconsin. No. 89-C-100 Rudolph T. Randa, Judge.
Before MANION, DIANE P. WOOD, and EVANS, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
Although this environmental case has been pending since 1989, during most of its life it has languished in the court. In the meantime, not surprisingly, the conditions about which the citizen plaintiffs originally complained have changed, perhaps substantially. It began when the Atlantic States Legal Foundation filed it as a citizen suit under the Federal Water Pollution Control Act (or Clean Water Act), 33 U.S.C. sec. 1365, seeking relief for past violations of National Pollutant Discharge Elimination System (NPDES) permits by the Stroh Die Casting Company in Milwaukee. Believing the statutory notice that Atlantic provided to Stroh insufficient to encompass its complaint about the principal point source at issue here, and further finding that no reasonable jury could conclude that Stroh was an "intermittent or continuous" violator with respect to the two other point sources Atlantic identifies, the district court granted Stroh's motion for summary judgment and dismissed Atlantic's suit. In our view, the district court read Atlantic's notice too narrowly. Furthermore, its conclusion that at the time the suit was filed Stroh was not at least an intermittent violator for one of the contested outfalls is inconsistent with the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49 (1987). We therefore reverse and remand.
Stroh produces zinc and aluminum castings at its Milwaukee plant. In the course of its operations, it discharges industrial wastewater through various outfalls to sanitary or municipal sewers run by the Milwaukee Metropolitan Sewerage District (MMSD), which eventually empty into Lake Michigan. It also discharges "non-contact cooling water," which is heated tap water, through storm sewers regulated by the Wisconsin Department of Natural Resources (WDNR) into the Bluemound tributary of the Menomonee River. As of November 1988, Stroh had a WDNR permit that allowed it to discharge the "non-contact cooling water" into the Bluemound, but it had no permit at all to discharge zincand phenol-contaminated industrial wastewater into the MMSD sanitary sewerage system.
This prompted Atlantic, an environmental organization with Wisconsin members, to send a letter on November 8, 1988 giving Stroh notice of violations of its WDNR discharge permit. (Despite the implication from its name that Atlantic had little connection with the Great Lakes, the complaint alleged that members of Atlantic resided in Wisconsin, in the vicinity of Lake Michigan, or they owned property or used Lake Michigan for recreational purposes, and thus were affected by Stroh's discharge of pollutants into the Lake. Stroh did not challenge Atlantic's standing to sue in any of its motions for summary judgment.) Under 33 U.S.C. sec. 1365(b), Atlantic had to give Stroh notice at least 60 days prior to suing it for those violations. The November 1988 notice alleged that Stroh had several times exceeded the daily maximum discharge limits for oil, grease, and biological oxygen demand 5 (BOD5) allowed under the WDNR permit for WDNR outfalls (discharge points) 1 and 3. On January 23, 1989, Atlantic filed a complaint against Stroh based on the November 1988 notice. Stroh moved shortly thereafter to dismiss Atlantic's claims for lack of subject matter jurisdiction, claiming that it was not "in violation" of the statute at the time of suit, because it was neither a continuous nor an intermittent violator as required by Gwaltney.
Rather than submitting a brief in opposition to Stroh's motion to dismiss, Atlantic chose on April 13, 1989, to send Stroh a second 60-day notice of intent to sue. The April 1989 notice alleged that Stroh had exceeded its maximums for zinc, phenol, oil and grease on several occasions at WDNR outfall 3. The April notice also alleged that Stroh had been discharging die casting process wastewater to the MMSD sanitary sewers since October 31, 1988, without a pretreatment discharge permit and in violation of the categorical standards of 40 CFR Chapter 464. It itemized certain specific violations at MMSD outfall 3 (not to be confused with the WDNR storm sewer outfall 3 that was the subject of the first notice) and accused Stroh of a "history of effluent standard violations." Stroh's own records, the notice claimed, showed that its discharges were not in compliance as of January 31, 1989, and that compliance was not expected until January 10, 1990. It concluded that "[s]uch violations are known to the Discharger and may be included in future legal actions by Notifier."
Stroh responded by obtaining an MMSD permit on July 28, 1989, that authorized it to discharge die casting wastewater to MMSD sewers through Stroh's Abcor treatment unit. At this point, the designation of outfalls becomes somewhat confusing, because the MMSD outfalls defined under the July 1989 permit were different from the identically numbered outfalls covered by the WDNR discharge permit described in Atlantic's November 1988 notice. Stroh's MMSD permit defined the following outfalls:
MMSD Outfalls 1.1, 1.2, and 1.3: handled discharges from the parts washer conversion coating, a three-stage washer that discharged each tank separately
MMSD Outfall 2: handled domestic waste only, unlimited under the MMSD permit
MMSD Outfall 3: handled discharge from the Abcor unit, which treated waste from die casting, mold cooling leakage, casting quench, and machining
MMSD Outfalls 4.0, 4.1, and 4.2: 4.0 was the sump pit through which wastewater from the parts washer and the deburring operation were directed; 4.1 and 4.2 were the batch discharges from the two-stage parts washer
MMSD Outfall 5: handled cooling water only, unlimited under the MMSD permit
Stroh's MMSD monitoring summary showed that it was not able consistently to meet the discharge limitations for zinc that applied to MMSD outfall 3, as violations occurred in June 1989 and October 1989.
Meanwhile, back in the district court, nothing was happening with the lawsuit. On the assumption that the case had been settled, the district court entered an order dismissing Atlantic's suit without prejudice on November 14, 1989, noting that it had not filed a brief responding to Stroh's motion to dismiss and had thus waived the right to do so under the court's local rules. Six months later, on May 7, 1990, Atlantic filed an amended complaint, which the district court accepted, reopening the case on May 8, 1990. Stroh moved to vacate the order reopening the case and to dismiss Atlantic's amended complaint, but the court took no action on the motion for two years. On April 16, 1992, Judge Warren, before whom the case had been pending, denied Stroh's motions. Later in 1992, both parties filed motions for summary judgment. Another four years passed, by which time the case had been transferred to Judge Randa. On March 22, 1996, he granted Stroh's motion for summary judgment dismissing the amended complaint and denied Atlantic's motion. This time, final judgment was entered on the order of dismissal on March 26, 1996 and this appeal followed.
Time was not standing still between 1990 and 1996, however, even if the case was. On May 29, 1990, shortly after Atlantic filed its amended complaint, Stroh wrote to the MMSD explaining why it had failed to meet the April 10, 1990, deadline for starting up its wastewater treatment system. It conceded that it was not in compliance with the MMSD permit at that time, but it expressed the hope that the new system would cure the problem. Then, on July 1, 1990, something reminiscent of the game of hiding a pea under one of several cups occurred. On that date, Stroh abandoned existing MMSD outfall 3 (which was the outfall mentioned in the April 1989 notice and the MMSD permit) and re-routed its industrial process wastewater to "outfall 4," necessitating the issuance of a modified MMSD permit in October 1990 to reflect the changes. The new outfall 4 was not the same outfall 4 that the July 1989 MMSD permit had described, however. Recall that the July 1989 MMSD permit labeled "outfalls 4.0, 4.1, and 4.2" as the sump pump from the parts washer and deburring operations and the batch discharges from the parts washer itself. By contrast, the October 1990 modified MMSD permit retroactively relabeled "outfall 4" as the sampling station located downstream of Stroh's pretreatment system. The discharge from the Abcor unit, which had formerly gone through MMSD outfall 3, was re-routed first through the new (but as yet inoperative) wastewater treatment system, where the zinc and phenols were to be removed, and then it was to be piped to the new, single MMSD outfall 4.
Samples taken from the new outfall 4 in July 1990 showed continued violations of effluent standards for zinc, lead, and phenols. MMSD issued notices of noncompliance to Stroh relating to discharges from the new outfall 4 in October 1990, November 1990, January 1991, and June 1991. MMSD then published a notice in the Milwaukee Journal on March 29, 1992, which listed Stroh as one of 15 industrial users that were in significant noncompliance with applicable effluent discharge standards during 1991.
Last, returning to the WDNR storm sewer system, Atlantic presented evidence indicating that Stroh continued to discharge nonprocessed water into the Bluemound tributary in violation of its WDNR permit. A Discharge Monitoring Report, whose accuracy Stroh contests, was received by the WDNR on April 16, 1992, in which Stroh reported discharging 11 milligrams per liter of oil and grease at WDNR storm sewer outfall 3 on February 6, 1992, which was 1 milligram over the per liter daily maximum allowed under its permit. Based on this contested evidence, Atlantic claims that the district court should not have dismissed its claims relating to WDNR outfalls 1 and 3.
Although the facts are somewhat complicated (made more so by the proliferation of outfalls that seem to have the same number until one takes a more careful look), the legal questions in this case are fairly straightforward. The first and most important question is whether Atlantic's April 1989 notice satisfied the jurisdictional prerequisite imposed by the Clean Water Act, 33 U.S.C. sec. 1365(b), for Atlantic's citizen suit about industrial discharges into the MMSD system. Within that general issue are three subsidiary points: first, was Atlantic's April 1989 notice specific enough about the alleged violation to encompass its claims about what eventually became new outfall 4; second, was Stroh at the time suit was brought a "continuing or intermittent" violator of the Act such that Atlantic would then have been entitled to an injunction; and third, what is the effect, if any, of the long delay between the November 1989 dismissal without prejudice (on which no Rule 58 final judgment was ever entered) and the district court's discretionary decision to accept the filing of the amended complaint in May 1990? The final question relates to the district court's decision to grant ...