Environmental Integrity Project v. Mirant Corp. (Maryland U.S.D.C.)(not approved for publication)

Informal Memorandum Opinion and Order--January 3, 2007 by Judge J. Frederick Motz (not approved for publication)

Through an informal memo to counsel, the Court granted Defendant's motion to dismiss based on lack of subject matter jurisdiction but denied Defendant's request for attorneys fees because the Court found the instant action not "frivolous, groundless, pursued in bad faith, or maintained after its baselessness became apparent."

Plaintiffs sought to rebut the presumption of diligence by asserting that (1) the process by which the consent decree came into being suggests a lack of diligence, (2) the penalties imposed by the consent decree are trivial and actually discouraged compliance by making it cheaper to continue to violate opacity standards, (3) the consent decree does not require Defendant to switch from oil to natural gas, and (4) the terms of the consent decree do not require compliance with federal and state opacity standards.

Defendants conceded that a 60-day notice letter was "the catalyst for an accelerated evaluation of emissions from fossil-fuel fired electric generating units at power plants in Maryland and the resulting negotiations ended in a consent decree filed in P.G. County just one day before Plaintiff’s could file suit pursuant to an order entered separately by the U.S. Bankruptcy Court for the Northern District of Texas." The Court found that §7604(b)(1) recognizes that citizens’ notice may provide the catalyst for regulatory action and regulatory agencies must be given 60 days to decide whether to take action. Consequently, there must be other indicia that a consent decree was entered into collusively in order for a lack of diligence to be found on the basis of allegedly tainted process.

The Court further rationed that, economic benefit analyses aside, the fact that state proceedings result in the imposition of minimal penalties is not itself a basis for finding that the state prosecutions were not diligent, particularly where the consent decree requires the defendant to incur substantial capital costs in complying with its terms and where the state court retains jurisdiction to enforce the decree.

The Plaintiffs seemed to suggest that the "requiring compliance" element of defendants’ subject matter jurisdiction defense is separate and apart from the "diligent prosecution" element of that defense. The court found that position lacked merit based, in part, on Clean Air Council, 2003 WL 1785879, at *5-6, wherein while considering the "requiring compliance" issue, indicated that the relevant question is whether the regulatory prosecution was "totally unsatisfactory,’ not whether it required the remedy which the [plaintiffs] would have preferred." The standard of review in Clean Air Council is the proper one because the inquiry into whether a consent decree is reasonably designed to require a polluter’s compliance with applicable standards is part and parcel of the inquiry into whether state regulatory authorities have diligently prosecuted an action against the polluter. Accordingly, the views and actions of the regulatory authorities are entitled to deference.

The full opinion is available in PDF.

U.S. v. Costello (Maryland U.S.D.C.)(not approved for publication)

Decided December 20, 2006--Opinion by Judge Richard D. Bennett (not approved for publication)

Action brought by the federal government and State of Maryland for alleged violations of the Clean Water Act, 33 U.S.C. §§1251, et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. §§401, et seq., and Md. Code Ann. Envir. §16-202(a).

Landowner (Costello) was granted emergency permits by Maryland to rebuild an erosion control structure, called a revetment, that had been destroyed by Hurricane Isabel. One condition of the permits was that the new revetment must have the same location and dimensions as the previously existing revetment. Costello retained PCI and Mielke, an engineer employed by PCI, to prepare permit applications and to design and construct the new revetment.

In the process of constructing the revetment during those four months, the defendants used earth-moving equipment to discharge fill material, including rock, dirt, and sand, into Whitehall Creek without a permit. These discharges allegedly created an obstruction to the navigable waters of the United States. They also resulted in the filling of State wetlands without a license.

The U.S. and the State of Maryland filed a Complaint in this Court alleging that defendants violated the Clean Water Act ("CWA"), the Rivers and Harbors Act of 1899 ("RHA"), and the provisions of Maryland's Code concerning permits to fill wetlands ("Maryland Wetlands Statute"), because the new revetment did not comply with the conditions of the emergency permit.

The plaintiffs sought a variety of injunctive relief as well as civil penalties. The injunctive relief sought was to enjoin defendants "from discharging or causing the discharge of dredged or fill material or other pollutants into any waters of the United States except in compliance with the CWA and RHA" and "from placing any unauthorized structures or obstructions or performing any work waterward of the mean high water mark without first having obtained all requisite federal and state permits."

PCI and Mielke filed the a motion to dismiss. They argued that injunctive relief should not be imposed against them and raised two arguments in support of their position. First, they argued that because they have no property rights to the site, they could not carry out any injunctions issued by this Court. Second, they argue that the injunctions would be moot, because "the alleged actions of these Defendants have all been completed, and these Defendants play no role in any current (or potential) alleged 'discharge' of pollutants, dredged or fill material."

Held:

1. The fact that PCI and Mielke do not have property rights in the site does not preclude this Court from issuing injunctive relief against them or any defendant to ensure compliance with environmental statutes.


2. PCI's and Mielke's mootness argument was rejected because their "allegedly wrongful behavior" is not only "reasonably expected" to occur, but will undoubtedly occur until the structure is removed.

The full opinion is available in PDF.