Professional Documents
Culture Documents
No. 06-1714
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior
District Judge. (3:92-cv-02574-MJP)
Argued:
Decided:
February 7, 2008
PER CURIAM:
Gaston Copper Recycling Corporation (Gaston) appeals an
order imposing civil penalties against it in a citizen suit brought
by Friends of the Earth (FOE) and Citizens Local Environmental
Action Network (CLEAN) under the Clean Water Act (CWA or the
Act), see 33 U.S.C.A. 1251-1387 (West 2001 & Supp. 2007).
We
I.
A.
The CWA provides that [e]xcept as in compliance with [the
Act], the discharge of any pollutant by any person shall be
unlawful. 33 U.S.C.A. 1311(a) (West 2001). The Act established
the National Pollutant Discharge Elimination System (NPDES) to
authorize the issuance of permits for the discharge of limited
quantities of effluents, see 33 U.S.C.A. 1342 (West 2001 & Supp.
2007), and individual states are allowed to issue NPDES permits
with the approval of the Environmental Protection Agency, see id.
1342(b).
See id.
B.
Gaston is a South Carolina corporation that owned and operated
a metals smelting plant in Gaston, South Carolina.
When Gaston
Bull Swamp Creek, which, in turn, flows into the North Fork of the
Edisto River.
mercury,
zinc,
and
pH,
and
contained
limitation
on
June 1997.
Despite the September 1, 1991, deadline, Gaston did not submit
the required final plans and specifications detailing its planned
improvements until December 23, 1991.
May 1992 and issued a draft permit modification, moving back the
effective date of the Phase II effluent limits until March 14,
1993.
Following
public
hearing
regarding
the
proposed
Gaston began
J.A. 485.
meet its deadline for submitting its final plans and specifications
to meet the Phase II limitations and failed to make modifications
to its facility to meet the Phase II limits by June 1, 1992.
It
J.A. 486.
Plaintiffs sought
Plaintiffs
Plaintiffs
lacked
principal
standing
allegations
to
prosecute
and
the
asserted
action.
that
At
the
The
their
members
had
suffered
an
injury
fairly
traceable
to
See
We remanded to the
Phase I discharge
The court
also found 396 monitoring violations and 323 violations for failing
to
report
discharge
exceedances
and
monitoring
violations.
J.A.
266.
Plaintiffs
and
Gaston
both
also
made
post-trial
motions
from Shealys widow and son asserting that they were members of
CLEAN and adopting Shealys testimony as their own.
Plaintiffs
Gaston opposed
Plaintiffs motion and moved on August 29, 2003, for relief from
the judgment on the ground that Plaintiffs no longer had standing
to prosecute this case after Shealys death (the Rule 60 motion).
On September 16, 2005, the district court granted Plaintiffs
August 1, 2003, motion to amend the judgment to reflect that Shealy
had died but that Plaintiffs continued to have standing through
Jones and McCullough.
May
22,
2006,
the
district
court
denied
Gastons
motions
Gaston
II.
While Gastons appeal was pending, Plaintiffs filed a motion
in this court seeking dismissal of the appeal except insofar as it
challenged the district courts denial of the Rule 60 motion.
deferred ruling on this motion until after oral argument.
We
We now
deny it.
As we have explained, the district court entered judgment
against Gaston on July 21, 2003. It is undisputed that Plaintiffs
August
1,
appealing.
2003,
Rule
52(b)/59(e)
motion
tolled
the
time
for
10
Plaintiffs contend that the time for appealing expired 30 days from
that date.
final
judgment,
see
Fed.
R.
App.
P.
4(a)(4),
just
as
motion was not denied until May 22, 2006, and because Gaston filed
its
notice
of
appeal
within
30
days
of
that
denial,
Gaston
7(b)
requires
that
We disagree.
motion
shall
state
with
particularity the grounds therefor, and shall set forth the relief
or order sought.
applies
to
motions
Rule
59,
Rule
not
require
11
Fed. R. Civ.
Id.
Fed. R. Civ.
Under these
We therefore hold
that the motion was sufficient under Rule 7(b), that it tolled the
time for appealing the final judgment, and that Gastons appeal of
the final judgment was timely.
III.
We now turn to Gastons jurisdictional challenge.
Gaston
III
of
the
Constitution
restricts
federal
court
Cir.
2005)
quotation
marks
omitted).
When
13
An association has
two elements.
first
element.
Plaintiffs
members
question,
satisfies
then,
the
is
whether
general
any
of
the
requirements
for
individual standing.
To demonstrate that its members have standing, an organization
bears the burden of proving that:
Lujan v.
14
Recycling,
individuals
sufficient.
204
F.3d
aesthetic
Id.
at
or
154.
Rather,
recreational
See Gaston
damage
interests
to
an
may
be
environmental
injured.
Id.
plaintiffs
must
themselves
be
among
the
See id.
canoe trips that he often leads on the Edisto River downstream from
Gastons discharge point.
Clients also
15
present from the Gaston Copper plant pose a very real concern.
J.A. 446.
J.A. 447.
J.A. 449.
McCullough, an FOE member, testified that he boated and scubadived in Pond Pond, J.A. 452, and that he was planning to dive
again downstream from that area.
He described
When
asked about whether he was concerned about the quality of the water
in which he boated and went scuba-diving, McCullough stated that he
would like to dive in water that is relatively clean and that he
was concerned about all waters in South Carolina that [he went
scuba-diving in] having contaminants, especially heavy metals [and]
pesticide runoff.
J.A. 453.
16
J.A. 455.
additional
We disagree.
scientific
[of
actual
harm
to
the
the
area
of
environmental
impairment.
Gaston
Copper
Club v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir. 1996), a
decision we cited with approval in our previous en banc opinion in
the present case, see Gaston Copper Recycling, 204 F.3d at 159-60.
There, the Fifth Circuit held that citizens concern about water
quality in Galveston Bay sufficed as injury in fact where [t]wo of
the affiants live near Galveston Bay and all of them use the bay
for recreational activities. Cedar Point Oil Co., 73 F.3d at 556.
The court held that it was sufficient that the affiants expressed
fear that the discharge . . . will impair their enjoyment of these
activities because these activities are dependent upon good water
quality.
Id.
17
from
environmental
damage
must
use
the
area
Fifth
Circuit
that
principle
In Crown Central,
to
conclude
that
Gaston
18
[from
the
polluting
facility].
Id.
at
158
(internal
Joness
and
McCulloughs
use
of
North
Fork
was
19
downstream
addressed
only
to
which
whether
the
the
runoff
runoff
proceeded.
proceeded
as
Rather,
far
as
it
the
confluence of Bull Swamp Creek and the North Fork of the Edisto
River.
Thus,
our
description
of
the
confluence
as
the
North
Fork
or
knowing
how
much
farther
beyond
the
remand is narrow and this case has been pending for such a very
20
IV.
In sum, we deny Plaintiffs motion for partial dismissal of
this appeal, and we order a limited remand to the district court.
REMANDED
21