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January 3, 1992



The opinion of the court was delivered by: NEAL P. MCCURN


 This motion for reconsideration asks the court to once again examine the propriety of a proposed consent decree between plaintiffs and the only remaining defendant, Archer Daniels Midland Company ("ADM"). *fn1" The proposed consent decree, *fn2" if approved by the court, would finally settle this action brought pursuant to the federal Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq.


 In 1984 Friends of the Earth ("FOE"), the Atlantic States Legal Foundation, and Richard Fedele, commenced the present action pursuant to the citizen suit provision of the CWA. See 33 U.S.C. § 1365(a). *fn3" The complaint alleges that the defendants repeatedly violated the terms and conditions of their National Pollutant Discharge Elimination System/ State Pollutant Discharge Elimination System permit ("the permit") while operating a corn processing plant in Montezuma, New York. On June 16, 1986, among other things, this court found ADM liable for those permit violations which occurred between June 12, 1982, and May 31, 1984.

 Later, in July, 1988, relying exclusively upon Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987), this court granted ADM's motion for summary judgment on mootness grounds with respect to plaintiffs' claims for injunctive relief. Friends of the Earth v. Archer Daniels Midland Co., Record at 52 (No. 84-CV-413). The court based its mootness finding on several factors including the following undisputed facts: (1) there had been no exceedances of defendants' permit since 1986; (2) the plant had been shut down since April, 1986; and (3) ADM had no intention of resuming operation of that plant. Id. at 51-52. The court specifically left open the issue of plaintiffs' claim for civil penalties, however. Again relying upon Gwaltney, the court concluded that "the issue of civil penalties is not rendered moot simply because the injunctive relief claim has been [rendered moot]." Id. at 53. In its oral decision, the court added that the determination as to "whether ADM will ultimately be required to pay such penalties cannot be made at this juncture." Id.

 On August 25, 1989, after the court's finding of liability, the parties submitted a proposed consent decree to the court, as well as to the United States Attorney General and the administrator of the Environmental Protection Agency, as required by 33 U.S.C. § 1365(c)(3). *fn4" That proposed consent decree required ADM to pay a total of $ 25,000.00 to three private environmental conservation organizations. *fn5" The decree further required ADM to pay $ 125,000.00 to plaintiffs for their litigation costs, including attorneys' fees, expert witness fees, and expenses. By its terms, the proposed consent decree required court approval.

 The United States filed "objections" to the proposed consent decree. *fn6" Basically, the Government requested that the court not approve of and enter the proposed consent decree because it "was greatly at odds" with the CWA. Objections of the United States to the Proposed Consent Judgment Pursuant to 33 U.S.C. § 1365(c) at 1. ("Objections"). The Government's objections were twofold. First, it objected on the basis that the proposed consent decree did not provide for the payment of a civil penalty to the United States Treasury, which the Government believed, and continues to believe, is mandated under the CWA. Second, the Government objected because, in its view, there was not a sufficient nexus between the private environmental organizations which were to receive money under the proposed consent decree, and the environmental harm caused by defendant ADM. Plaintiffs and ADM adamantly maintained that payment of a civil penalty to the United States Treasury (the "Treasury") was not required, and, that the decree should be approved because it complied with the basic goals of the CWA.

 After considering the respective positions of the parties and of the Government, the court held that although the payments were "civil penalties" within the meaning of the CWA, the legislative history to some of the most recent amendments to the CWA indicated that those payments were not required to be paid only to the United States Treasury. Friends of the Earth, No. 84-CV-413, slip op. at 6 (N.D.N.Y. July 19, 1990). The court did not agree that the payments could be made to wholly private entities, though. Instead, relying upon Sierra Club, Inc. v. Electronic Controls Design Inc., 703 F.Supp. 875 (D.Or. 1989), where the court refused to allow payments to private environmental organizations, but did approve of payment to a state environmental program, this court suggested payment to a state environmental project. This court further held that there was no requirement that the payments be related to remedying the harm caused by ADM. The court therefore denied approval of the proposed consent decree, observing that modification of the consent decree in a manner consistent with Sierra Club I would provide an "appropriate settlement." Friends of the Earth, slip op. at 11.

 Shortly after the court issued that decision, on August 1, 1990, the Ninth Circuit Court of Appeals reversed the district court's decision in Sierra Club I. The Ninth Circuit held, among other things, that because "no liability was ever judicially established," payments under the proposed consent decree were not civil penalties, and thus, could be paid to private environmental organizations. Sierra Club, Inc. v. Electronic Controls Design, Inc., 909 F.2d 1350, 1356 (9th Cir. 1990) ("Sierra Club II")

 Based upon that reversal, the parties herein moved for joint reconsideration of this court's July 19, 1990 order, seeking court approval of the original proposed consent decree. *fn7"

 To further enlighten the court on the civil penalties issue, in April, 1991, the court had a conference with the parties, and the Government participated by telephone. At that conference, the court also expressed some concern about whether the proposed amount of payment of $ 25,000.00 was adequate, and whether the court had an independent obligation to assess the sufficiency of that amount. Following the conference, at the court's request, the parties, as well as the Government, filed supplemental memoranda of law on the issue of whether the court should approve payments under the proposed consent decree to private environmental organizations.

 The court has now had an opportunity to carefully review all of the briefing provided to it on these issues. The court has also undertaken a thorough examination of the relevant case law; and, for the reasons set forth herein, the court is still unable ...

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