## Facts

- Gwaltney of Smithfield, Ltd. operated a pork-processing facility in Virginia under a Clean Water Act (CWA) NPDES permit with limits on multiple discharge parameters, including total Kjeldahl nitrogen (TKN) and chlorine.
- From 1981 to 1984, Gwaltney reported over 150 permit exceedances, including TKN and chlorine violations.
- Chesapeake Bay Foundation, Inc. and NRDC (environmental organizations) provided statutory notice in February 1984 and filed a CWA citizen suit on June 15, 1984, about one month after the last reported violation (May 15, 1984).
- Evidence at trial included additional permit violations during the winter preceding trial and testimony suggesting uncertainty about Gwaltney’s ability to maintain compliance through future winters.
- The district court found liability and imposed civil penalties totaling $1,285,322, allocating amounts to TKN and chlorine violations.
- After an intervening Supreme Court decision limiting citizen-suit jurisdiction to ongoing (not wholly past) violations, the district court on remand again found ongoing violations at filing and reaffirmed penalties.

## Issues

1. Whether plaintiffs proved a “continuous or intermittent” violation at the time the complaint was filed, as required for CWA citizen-suit jurisdiction.
2. Whether plaintiffs had Article III standing to pursue civil penalties payable to the U.S. Treasury.
3. Whether Gwaltney’s post-filing compliance mooted the case.
4. Whether jurisdiction and penalties require proof of an ongoing violation for each permit parameter (e.g., TKN, chlorine), or whether an ongoing violation of the permit in general is sufficient.

## Decision

- Affirmed the finding that plaintiffs proved an ongoing (intermittent) violation at the time suit was filed, based on the likelihood of recurring violations shown by the record.
- Held plaintiffs had standing because civil penalties have a deterrent effect likely to redress plaintiffs’ injuries from unlawful discharges.
- Held the case was not moot despite later compliance because penalty litigation for past violations linked to ongoing violations remains a live controversy.
- Reversed the penalty award for chlorine violations, holding the court lacked jurisdiction to impose penalties for parameter violations that were wholly past at filing.
- Limited civil penalties to the parameter for which ongoing violations were established (TKN).

## Legal Principles

- CWA citizen-suit jurisdiction under § 505 requires a good-faith allegation and proof of an ongoing “continuous or intermittent” violation at the time of filing; wholly past violations are insufficient.
- Post-filing compliance does not defeat jurisdiction where the record supports a reasonable likelihood of recurring violations relevant to the filing-time inquiry.
- Citizen plaintiffs may satisfy Article III redressability when they seek civil penalties paid to the Treasury because deterrence can mitigate ongoing or future environmental harm.
- Mootness is not established merely by subsequent compliance when the action seeks penalties for past violations tied to violations that were ongoing at filing.
- Ongoing-violation jurisdiction is parameter-specific: penalties may be imposed only for violations of the particular effluent limits shown to be ongoing (not wholly past) at the time suit was filed.

## Conclusion

The Fourth Circuit sustained Clean Water Act citizen-suit jurisdiction, standing, and non-mootness based on evidence of likely recurring violations, but narrowed the permissible penalty award by requiring ongoing violations to be proven for each permit parameter, thereby barring penalties for chlorine exceedances that were wholly past when the complaint was filed.


Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690 (4th Cir. 1989)