Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd. (1986)

The Court of Appeals acknowledged, also in a footnote, that "[a] very sound argument can be made that [respondents'] allegations of continuing violations were made in good faith," 791 F. 2d, at 308, n. 9, but expressly declined to rule on this alternative holding.

The court reasoned that the Clean Water Act "speak[s] in terms of penalties per day of violation, rather than penalties per violation." Chesapeake Bay, 791 F.2d at 314 (emphasis in original).

This language strongly suggests that where a violation is defined in terms of a time period longer than a day, the maximum penalty assessable for that violation should be defined in terms of the number of days in that time period. 89 791 F.2d at 314 (footnote omitted).

In the opinion below, the district court reaffirmed our holding in Chesapeake Bay Found., 791 F.2d at 313-15, that each violation of a monthly average limit shall be treated as a violation for every day in the month in which the violation occurred, rather than as a single violation for that month.

In the opinion below, the district court reaffirmed our holding in Chesapeake Bay Found., 791 F.2d at 313-15, that each violation of a monthly average limit shall be treated as a violation for every day in the month in which the violation occurred, rather than as a single violation for that month.

A discharger who exceeds the 791 F.2d at 314 (footnote omitted).

The district courts have substantial discretion in imposing penalties, and, as the Gwaltney court pointed out in response to a similar argument, the district court “could ... impose a substantially smaller penalty on [the] hypothetical polluter than on [the larger polluter].” 791 F.2d at 315.

The district courts have substantial discretion in imposing penalties, and, as the Gwaltney court pointed out in response to a similar argument, the district court "could . . . impose a substantially smaller penalty on [the] hypothetical polluter than on [the larger polluter]." 791 F.2d at 315. 38 In sum, we conclude that the district court correctly included each pass of the ripper as a separate violation.

Id. at 314 (emphasis in original).

There the court found the language “to be in violation” ambiguous and concluded that a citizen suit could be predicated upon past violations of the terms of an NPDES permit. 791 F.2d at 309.

The Court of Appeals for the Fourth Circuit affirmed, holding that the citizen *286 suit provision could be construed “to contemplate unlawful conduct that occurred only prior to the filing of a lawsuit as well as unlawful conduct that continues well into the present.” Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304, 309 (4th Cir.1986).

Although the Complaint was filed on July 16, 2012, this excessive monthly average measurement in July 2012 nonetheless suffices to establish a post-Complaint violation because “each violation of a monthly average limitation [is] equivalent to a daily violation for each day of that month.” Gwaltney, 791 F.2d at 313.

I agree with the reasoning set forth by the Fourth Circuit in Chesapeake Bay, 791 F.2d at 314, While the statute does not address directly the matter of monthly average limitations, it does speak in terms of penalties per day of violation, rather than penalties per violation.

Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304, 314-15 (4th Cir.1986) (each violation of a monthly average limit shall be treated as a violation for every day in the month in which the violation occurred, rather than as a single violation for that month), rev’d on other grounds, 484 U.S. 49 , 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987), remanded, 844 F.2d 170 (4th Cir.), judgment reinstated, 688 F.Supp. 1078 (E.D.Va.1988), aff'd in part, rev’d in part on other grounds, and rem…

See U.S. EPA v. Environmental Waste Control, Inc., 710 F.Supp. 1172, 1242 (N.D.Ind.1989), aff'd 917 F.2d 327 (7th Cir.1990); United States v. T & S Brass and Bronze Works, Inc., supra; Chesapeake Bay Foundation v. Gwaltney of Smithfield, 611 F.Supp. 1542, 1556 (E.D.Va.1985), aff 'd 791 F.2d 304, 315 (4th Cir.1986), rev’d on other grounds, 484 U.S. 49 , 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987); United States v. Phelps Dodge Industries, Inc., supra, at 1358; United States v. Swin…

Universal Tool, 786 F.Supp. at 747 (citing Gwaltney, 791 F.2d at 314) (emphasis in original).

Gwaltney appealed the imposition of civil penalties, and the Court of Appeals for the Fourth Circuit affirmed, holding that § 1365(a) “can be read to comprehend unlawful conduct that occurred only prior to the filing of a lawsuit as well as unlawful conduct that continues into the present.” 791 F.2d at 309.

See Gwaltney, 791 F.2d at 308 .

See Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304, 314-15 (4 Cir.1986) (civil penalties may be assessed on a daily basis), vacated on other grounds, — U.S. —, 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987); § 1319(d) ("shall be subject to a civil penalty not to exceed $10,000 per day of such violation”).

See 791 F.2d at 308 n. 9.

See Chesapeake Bay Found., 791 F.2d at 315 (“ § 1319(d) serves only to set a maximum penalty.

See, e.g., Chesapeake Bay Found, v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 , 314-15 (4th Cir.1986) (stating that it “is important ... to adopt an approach that will give [trial] courts the continuity of possibilities necessary for them to assess appropriate sanctions in every case”), vacated on other grounds, 484 U.S. 49 , 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987).

See Chesapeake Bay Foundation v. Gwaltney of Smithfield, 611 F. Sup. 1542 , 1556-57 (E.D.Va. 1985), aff'd, 791 F.2d 304 (4th Cir. 1986) vacated on other grounds, 484 U.S. 49 , 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987).

See Chesapeake Bay Foundation v. Gwaltney of Smithfield, 791 F.2d 304 , 315-16 (4th Cir. 1986); Public Interest Research Group v. Powell Duffryn Terminals, Inc., 720 F. Sup. 1158, 1165-66 (D.N.J. 1989).

See Chesapeake Bay Foundation v. Gwaltney of Smithfield, 611 F. Sup. 1542 , 1556-57 (E.D.Va. 1985), aff'd, 791 F.2d 304 (4th Cir. 1986), vacated on other grounds 484 U.S. 49 , 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987).

See Chesapeake Bay Foundation v. Gwaltney, 611 F.Supp. 1542, 1562 (E.D.Va.1985) (the Court was “unpersuaded that any penalty warranted by Gwaltney’s violations would jeopardize Gwaltney’s continued operation”), aff 'd, 791 F.2d 304 (4th Cir.1986), vacated and remanded on other grounds, 484 U.S. 49 , 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987).

See Chesapeake Bay Foundation v. Gawaltney of Smithfield, 611 F.Supp. 1542 (E.D.Va.1985), aff'd, 791 F.2d 304 (4th Cir.1986), cert. granted, 479 U.S. 1029 , 107 S.Ct. 872 , 93 L.Ed.2d 827 (1987).

See Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th Cir.1986) (affirming 611 F.Supp. 1542 (E.D.Va.1985)), rev’d on other grounds, — U.S. -, 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987).

Compare Chesapeake Bay Foundation v. Gawaltney of Smithfield, Ltd., 791 F.2d 304 , 308 (4th Cir.1986) (holding that private citizens may sue “to seek civil penalties for past violations of the Act as well as abatement of ongoing violations”), cert, granted, — U.S. -, 107 S.Ct. 872 , 93 L.Ed.2d 827 (1986), with Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 395 (5th Cir.1985) (holding that “a complaint brought under section 1365 must allege a violation occurring at th…

See, for example, Cheasapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th Cir.1986) .

See also Chesapeake Bay Foundation, Incorporated v. Gwaltney, 791 F.2d 304 , 24 ERC 1417 -1427 (4th Cir.1986).