Sample casenote

1. Atlantic States Legal Foundation, Inc. v.
Eastman Kodak Co.
United States Court of Appeals for the Second Circuit
12 F.3d 353 (1994)
FACTS: In November, 1991, Atlantic States Legal
Foundation, Inc. (plaintiff) initiated an action as a
private citizen against Eastman Kodak Co. (defendant)
claiming that Kodak was in violation of Sections 301
and 402 of the federal Clean Water Act (CWA), 33
U.S.C. §§1311 and 1342, because Kodak was
discharging pollutants that were not specifically listed in
its 1984 New York state issued pollutant discharge
permit number 000-1643 (SPDES Permit). At the time
of Atlantic States’ complaint, Kodak had, in 1989, filed
required disclosures and applied to renew its SPDES
Permit with a supplemental disclosure. While the
renewal was pending, the SPDES Permit remained in
effect. Since the CWA does not prevent a permittee
from discharging pollutants that are not specifically
listed or limited in a discharge permit, the district court
granted summary judgment in favor of Kodak,
dismissing the case.
RULE OF LAW: A private citizen cannot bring an
action under the Clean Water Act to prevent the
discharge of pollutants that are not specifically listed or
limited in an active discharge permit when the polluter is
in compliance with its federal or state issued discharge
permit.
ISSUE: Can a private citizen bring an action under the
Clean Water Act to prevent the discharge of pollutants
that are not specifically listed or limited in an active
discharge permit when the polluter is in compliance with
its federal or state issued discharge permit?
HOLDING AND REASONING: (Winter, CJ.) No. A
private citizen cannot bring a Clean Water Act
enforcement action when pollutants are discharged that
are not specifically listed or limited in a valid discharge
permit. Section 402(k) of the Clean Water Act, 33
U.S.C §1342(k), contains what is known as a “shield
provision” which prevents private suits seeking Clean
Water Act enforcement when the polluter is in
compliance with a federal or state issued discharge
permit. The intent of the Clean Water Act is to require
dischargers to list and limit only the most harmful
pollutants in their discharge permits. Other discharged
pollutants must merely be disclosed. Contrary to
Atlantic States’ position that the discharge of pollutants
not identified or regulated in a discharge permit is
strictly prohibited, under Section 402(k), as long as a
discharger obtains and is in compliance with the terms of
a valid federal or state permit, unlisted pollutants can be
discharged if done in compliance with applicable
reporting and disclosure requirements. It is the position
of the Environmental Protection Agency, the federal
agency charged with administering and enforcing the
Clean Water Act, that it “did not intend to require water
quality-based permit limitations on all pollutants
contained in a discharge.” Memorandum from Director,
Office of Wastewater Enforcement and Compliance to
Water Management Division Directors, Regions I-X, at
p.2 (Aug. 14, 1992). The Environmental Protection
Agency’s interpretation of the parameters of discharge
permit requirements and Clean Water Act compliance is
reasonable, persuasive, and entitled to deference under
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 844 (1984), while the position of
Atlantic States is not. Under the scheme envisioned by
Atlantic States, even the discharge of plain water, if not
listed or limited in a permit, would be a violation of the
Clean Water Act. Since Section 402(k) of 33 U.S.C
§1342(k) finds compliance under the Clean Water Act
when the discharger complies the applicable state or
federally issued discharge permit, and since Kodak is in
compliance with its SPDES Permit, Atlantic States
cannot bring a private suit against Kodak under the
Clean Water Act on this issue. Kodak is shielded from a
private Clean Water Act suit because it is in compliance
with the applicable SPDES Permit. This court therefore
affirms the decision of the district court.
KEY TERMS:
Shield provision Also known as a “permit shield,” in
the context of the Clean Water Act, it protects the permit
holder from enforcement action so long as there is
compliance with the applicable permit provisions.
Chevron Deference An administrative law standard
under which an agency interpretation of a statute is given
deference unless the interpretation is arbitrary or
capricious.