Mineral Law Center

University of Kentucky College of Law

JOURNAL OFNATURAL RESOURCES &

ENVIRONMENTAL LAW

ARTICLES

Cleanup of Contaminated Oyster BedsUnder the Clean WaterAct and Louisiana'sEnvironmental and Water Quality Laws Erinn W. Neyrey

M. Michelle Marney

The WTO and the Environment." The ShrimpCase That Created a New World Order Laura Yavitz

NOTES

Sunshine Patriot or Cold War Casualty?:An Examination of Wrongful ExposureSuits Brought by Nuclear Complex Employees Christopher S, Turner

Technological Trash:Should We Regulatethe Disposal of Cathode Ray Tubes inWasteFacilities? Kenneth Clay Ratley

COMMENTS

Trash in the Courtroom. The Problem

of Solid Waste Control Ordinances afterHuish Detergents, Inc. v. Warren County Benjamin D, Allen

The Choice of Law Issue for CorporateSuccessor Liability Under CERCLA inNorth Shore Gas Company v. Salomon, Inc.:Another Opinion Sidesteps the Issue Jay W,Warren

An Interdisciplinary Journal ofLaw, Science & Policy

2001-02 Volume 16, Number 2

CLEANUP OF CONTAMINATED OYSTER BEDS UNDER THE

CLEAN WATER ACT AND LOLIISIANA' S ENVIRONMENTAL

AND WATER QUALITY LAWS I

ERINN W, NEYREY' AND M. MICHELLE MARNEY "*

I. INTRODUCTION

The State of Louisiana lies entirely in the Gulf CoastalPlain. Surface water covers more than 3,100 square miles inLouisiana, with twelve major river basins, some 66,000 miles ofrivers and more than one million acres of lakes and reservoirswithin the state's borders? Recreational and commercial fishingcontributes over $1.0 billion to the economy of Louisiana annually. 3Commercial marine fishing in Louisiana has a yearly average

estimated dockside value of $300 million, 4 with oyster.productionrepresenting some $30 million of that total annual value." Based ondata compiled in January of 2000, LouiBiana is the top producer ofoysters in the Gulf of Mexico region, with an axmual harvest ofmore than 13,000,000 pounds, 6 and approximately 415,459 acresleased to commercial oyster farmers. 7 Nearly 60% of the nation'soysters are produced in the Gulf of Mexico region, s

The successful propagation of oysters requires stablephysical and chemical parameters in the water eolunm and sediments

'Research for this pubtieation was funded by the louisiana Sea Grant legalProgram, a part of the National Sea Grant College Progrom,mainta/nod by NOAA, U.S._t of Cornmer_. The Louisiana Sea GrantCollege Programat l.xmisiaM StateUniversityis also supportedby the Stat_ of Louisiana.

*B.S. 1992,Spring Hill ColMge;J.D.1995, LouisianaSta_¢University,PaulHebertLaw Canter; MSEL 1996,VermontLawSchool. Curreralyemployedas the LegalCoordinatoroftl_ LouisianaSea GrantLega/Program.

"B.$. 1994, Louisiana State University, Shreveport; .J.D. 2000, Louisiana StateUniversity,PaulHebcztLaw Center.Currentlyemployed with Tyler,Porter, Brooks& Phillips,L.L.P. in Baton Rouge, LA. Formerly an environmental consultant specializing in tim airpermitting field. Special thanksto James(3. Wilkins for his editorial expertise.

ZLouisiana _t of Eta,d_nmeatal, State of Louisiana, Water QualityManagement Plan, Water Quality Inventory Section 305(b), Part li, Ch. 1, p,l-3. (20_O),available at http:/lwww,d_l.stateJaw.us_lanning/3OSht2000130$b-2,htm.

Jhttp://www.da_r.stateJ_,us,Louisiana Departmentof Natural Resotu-ees,LouisianaCoastal Facts (last visited 11/2/001.

did.at LouisianaCoastal F_'t._sOyst_ gtrike Force,Louisiana Departmentof Wildlife and Fishmies, aeailable at

http://www.wtf,state.lmus/appstnetgear/index.asp?en=lawlf&pid_sg2at para. I, (last visitedNov. 2, 2000).

_1999 Oyster Landings, Dcpartm_t of Wildlife and Fish_ies, available athnlp://oysterweb,dnr.slat_.la,usloyster/oysterland.htm.(last visited Nov, 2, 2000).

_LDWF Oyster 1¢_.,s¢Survey Section, _¢pamnent of Witdlif_ and Fish_-s,ayaitatJteat h_p://oysterweb.dnr.state.la.us/oyster/oystcctable.htm,(last visited 1an. 2, 2001).

SLanding_,supra nolo 6.

180 J. NAT. RESOURCES_ ENVTL.L. [VOL. 16:2

that are home to the oyster beds. Oysters are highly sensitive to thequality of their habitat, affected by everything from watertemperature to the slightest change in mineral concentration in thewater. 9 Oysters feed by filtering water and collecting nourishment inthe process. As a result, oysters and other shellfish collect chemicalsand other pollutants from the waters where they live. '° Each year,the introduction of pollutants into waters nationwide severely, limitsthe quantity and quality of suitable oyster habitat." "Viruses,bacteria and toxins introduced into the waters by illegal wastedisposal, flooding, spills and other sources can build to levels inshellfish sufficient to cause illness when eaten by humans. "L2Though freshwater intrusion from diversion projects and generalwater quality degradation caused by diffuse runoff pollution(commonly referred to as non-point source pollution) often causes orcontributes to the harmful changes in oyster habitat conditions, eachyear point source pollution also results' in closure of many otherwiseproductive and healthy oyster beds. ,3 More specifically, it has beenreported that while "the Gulf Coast region leads the nation in thetotal amount of shellfishing waters, it ranks last in the percentage ofwaters approved for shellfishing. '''4 Those in the oyster industrydirectly feel the impact of degraded and diminished oyster habitat,and it is they who would most directly benefit from cleanup andrestoration of polluted oyster beds.

While the Comprehensive Environmental ResponseCompensation and LiabilityAct (CERCLA) imposes sweepingcleanup and remediation liability on responsible persons for damagecaused by releases of hazardous substances, t5 and the Oil PollutionAct (OPA) is available to force responsible parties to clean up watersaffected by the spill or release of oil and other petroleum productsnot covered under CERCLA, '6 it is the Clean Water Act (CWA) Dand its Louisiana counterpart, the Louisiana Water Control Law, '8

OSeegenerally Oyster Strike Fome_ supra note 5,t°ld"

J_'...the contamination of shellfish growing waters by bacterial pollution is an

increasing problem across the United States," Robert E. Watson, Jr., Evaluation ofa MarshlandUpwelling System for the Treatment of Raw Domestic Wastewater I (2000) (unpublished

thesis, L.S.U.) (on file with the L.SM. Department of Civil Environmental Engineering).J2Oyster Strike Force, supra note 5.I_Telephone Interview with Kermeth W. Hemphitt, Administrator, LA Dept. of

Health and Hospitals, Molluscan Shellfish Program, (Jan.3, 2001)._'Robert E. Watson, supra note I L There has been a 7% increase in harvest limited

waters in Louisiana in the last ten yeats. NOAA Oceanic and Atmospheric Administration(NOAA), 1997. _The 1995 National Shellfish Register of Classified Growing Waters," 398.

_Comprchensive Environmental Response, Compensation and Liability Act, 42U,S.C. §§ 9601-9675 (2001).

1633 U.S.C. § 2701 (2001).17ld. § 1251._SLA.REV,STAT.A_. § 30:207t(2000).

2001-02] CLEANUPOFCONTAMINATEDOYSTERBEDS 181

that generally proscribe the discharge of pollutants into the waters ofthe U.S. The Louisiana Water Control Law defines "pollutant"broadly enough to include any substance introduced into the watersthat adversely affects the usefulness of the resource or the health ofhumans, animals, or the ecosystem. 19 This definition would include

hazardous substances, non-hazardous substances, petroleumproducts, and a variety of other substances, including conditions thatmay even be innocuous in isolation but nevertheless negativelyimpact water quality when introduced into a balanced ecologicalsystem in.a water body that supports fisheries, vegetation and all theuses attendant thereto. The remainder of this commentary willaddress methods and mechanisms available to compel cleanup underthe CWA and will close with an examination of the relevantLouisiana laws and regulations.

II. CLEAN-UPUNDERTHECLEANWATERACT

The Federal Water Pollution Control Act, now commonlyreferred to as the Clean Water Act, was originally enacted in 1948and was substantially mended to its present form in 1972.2°(a) Asamended, the stated objective of the CWA is "to restore andmaintain the chemical, physical, and biological integrity of theNation's waters. "2° This objective translates generally into twoprimary national goals: l) to eliminate the discharge of pollutantsinto the nation's waters, and 2) to achieve water quality levels thatare safe for fishing and swimming. 21 The CWA's focus onimproving the quality of the nation's waters is evident in the

comprehensive regulatory framework, which addresses municipaland industrial wastewater discharges, toxic spill incidents, surfacewater runoff from urban and rural areas, and habitat destruction.22

Though the provisions of the CWA address methods toimprove and maintain water quality in great detail, it would seemthat the restoration and remediation of polluted waters should be ofequal importance to achieve the goals of the CWA. While the CWAclearly prohibits the discharge of pollutants into navigable waters notin compliance with a permit, and expressly provides for enforcementthrough the issuance of non-compliance orders and civil and criminal

sanctions, the CWA does little to address the actual cleanup ofpolluted water bodies. The provisions of the CWA relative to oil andhazardous substance liability in Section 311 provide the clearest

_91d.§ 30:2073 (definition of"water pollution").

_a_35 U.S.C. § 12$I(a}, CWA § lOl(a) (2001}._ld.

z_S_'33US.C, _ 1251(a)(I}-(2}. CWA § IOi(a)(l}-(2} (2001).Uld,

182 J. NAT. RESOURCES& ENVTL.L [VOL. 16:2

exception to this shortcoming. 23 However, it is important to note thatany remedies available under Section 311 address only discharges ofoil and hazardous substances. 24

Of course, water pollution problems are not limited todamage caused by oil and hazardous substances. In fact, pollutionmore often results from the introduction of non-hazardous substances

into the waters. Further, though federal courts have the authorityunder the CWA to order parties to come into compliance, to imposecivil penalties, and to order injunctive relief, monies collected underthis authority are deposited into the United States TreasuryY Whilethe assessment of penalties achieves the goal of deterringnoncompliance, the more basic goals expressed in the openingphrases of the CWA go unfulfilled where monetary paymentscollected will not provide site-specific redress for the areas affected

by violations. Therefore, solutions to the water pollution problemam turning increasingly on interpretive regulation, policies of theUnited States Environmental Protection Agency (EPA), as well asprivate citizen actions that seek alternatives to the imposition of civilpenalties.

Ill. SUPPLEMENTAL ENVIRONMENTAL PROJECTS

The use of supplemental environmental projects (SEPs) hasemerged as the enforcement alternative that best achieves the waterquality restoration goals of the CWA. SEP's are environmentallybeneficial projects which a defendant/ respondent agrees toundertake in settlement of an enforcement action, but which thedefendant/respondent is not otherwise legally required to perform. 26The EPA's Supplemental Environmental Projects Policy recognizesthat while penalties play an important role in environmentalprotection, SEPs go fimher to secure significant, tangibleenvironmental improvement. The SEP policy encourages the use ofenvironmentally beneficial projects as part of the se_lement ofenvironmental enforcement cases, providing specifically for thetypes of projects that are permissible, the terms and conditions underwhich and SEP may become part of a settlement, and the extent to

_33 U.$.C. § 1321,CWA § 311 (2001).24,,eee33 U.S.C. § 1321(b)(1), CWA § 31 t(b)(I), ("The Congr_s h_by doclar_

that it is the policy of t.he United States that there should be no discharges ofoil or hazardoussubstances into or upon the navigable waters of the United States, adjoining shoreline, or into orupon the waters of the contiguous zone...").

_SGwalmey of Smithfield, Ltd. v, Chesapeake Bay Found., inc., 484 U.S. 49, 53(1987), (interpreting 33 U.$.C. § 1319, CWA § 309).

2¢'EPA, Office of Enforcement and Compliance Assurance, EPA SupplementalEnvironm(mtal Projects Policy, May 1, 1998, available at http://es.epa.gov,tooc:a/sep/scpfinal.html (last visited Nov. 3, 2000) at 2.

2001-02] CLEANUPOFCONTAMINATEDOYSTERBEDS 183

which mitigation of conventional penalties through use of SEP isacceptable. 27 The SEP policy provides a comprehensive frameworkfor the EPA to use in exercising its considerable enforcementdiscretion to settle enforcement cases, setting out the three keycomponents of a SEP, defining each as follows:

1) "Environmentally beneficial" means theproject must improve, protect, or reduce risks topublic health, or the environment at large, andwhile it may provide the alleged violator withcertain benefits, the project clearly must primarilybenefit public health or the environment; 28

2) "In settlernent of an enforcement action"means that the agreement results from a processin which EPA has had the opportunity to helpshape the scope of the project beforeimplementation and the project is not commencedtmtil after EPA has identified a violation; 29and

3) "Not otherwise legally required toperform" means that the project or activity is notrequired by any federal, state or local law orregulation and does not include actions oractivities which the violator is likely to beobligated under the law to perform at somepoint.3°

The SEP policy sets out seven specific categories ofsupplemental environmental projects which may be part of anapproved settlement: public health projects, pollution preventionprojects, pollution reduction projects, environmental restoration andprotection projects, environmental assessment and audit projects,environmental compliance promotion projects, emergency planningand preparedness projects, and other projects approved on aease-by-ease basis. 3' The SEP policy goes on to provide, insignificant detail, legal guidelines to assist the EPA's evaluation ofwhether a proposed SEP is within the EPA's settlement discretionand to ensure consistency with aU statutory and constitutionalrequirements. 32

ZTseegenerally, ld,nld, at 4._ld._Old._iSee Policy, supra note 28, at 6-1 I.32/d. at 5-6.

184 J. NAT. RESOURCES& ENVTL.L. [-VOL.16:2

Currently, the EPA has included SEPs in the settlement of

some 580 environmental enforcement cases, including more thanseventy CWA enforcement eases settled since 1995. 33 This numberis not an insignificant portion of the total environmental enforcementcases initiated by the EPA and clearly indicates the willingness ofboth the EPA and the alleged violators to enter enforceableagreements to redress the particular harm or damage to theenvironment caused by the specific violations. The EPA'swillingness to include SEPs as part of the settlement of enforcementcases is understandable, as these agreements directly further thestated goals of the CWA (such as the restoration of water quality)that would otherwise go unmet. However, to fully realize thepotential benefits of SEPs, an understanding of the incentive orimpetus of alleged .violators to enter a settlement agreement thatincludes one or more SEPs is critical. Implicit in the very definitionof the SEP is the indication that an agreement to conduct a SEP willmitigate the civil penalty assessed. SEPs are commonly defined asvoluntary acts performed by alleged polluters in exchange for areduction in monetary penalties that would probably be assessed ifthe complaint were to be adjudicated) 4 Like any other settlementnegotiations where litigation is pending, the likely outcome at trialfaces the greatest pressure on the parties to come to an agreementless onerous than may be otherwise imposed. In addition toweighing probable penalty upon adjudicationagainst monetaryobligation under settlement, it follows from simple human naturethat one expending funds would like to "get something" for hismoney or see where his money is going; therefore, the violatorwould prefer the penalty assessed against him to go toward rectifyingenvironmental interests specifically affected by violations rather thantoward replenishing the United States Treasury. Lastly, the violator'sagreement to undertake environmentally beneficial projects, evenwhere required as part of a penalty for violation, can provide positivepublic relations to either protect a good corporate reputation orimprove a poor one.

Though the ultimate terms and conditions of a settlementagreement in an environmental enforcement ease, whether it includesa SEP or not, lies within the discretion of the EPA or its state

counterpart, there is certainly room for participation by privatecitizens. The SEP policy provides specifically for "CommunityInput" in developing and approving SEPs, entreating the EPA to

_30ffice of Enforcement and Compliance Assurance, Office of RegulatoryEnforcement, SEP National Database, E.P.A., available at http://es.epa.gov/oc_sep/searchsep.html (last visited Nov. 3, 2000), (The SEP Database is not warranted as representative ofU.S. approved or recommended SEPs.).

3_ta.

2001-02] CLEANUPOFCONTAMINATEDOYSTERBEDS 185

make special efforts to seek the input of communities adverselyaffected by the violations at issue in a given enforcement case. 35 TheEPA's SEP policy provides four guidelines for soliciting communityinput in order to provide meaningful public participation. Theguidelines a/e as follows:

1) Once a paB_yhas expressed interest indoing a SEP and a willingness to seek communityinput, the possible projects, approximate moneyavailability, and consequence of settlementincluding a SEP, the EPA should provide thecommunities with information regarding thescope of possible SEPs;3_

2) Contact the communities by both informaland formal methods, including contacting localcommunity organizations, churches, and electedofficials, as well as provide standard public noticein the appropriate newspapers;3_

3) Provide the communities with generalinformation about SEPs, including the use ofSEPs in the context of settling enforcement cases,and the possible penalties for enforcement, in a

• public hearing forum at which the alleged violatormay choose to be present, 35and

4) Allow for some appropriate communityinput without allowing actual communityparticipation in settlement negotiations. 39

IV. BRINGINGA CITIZENSUIT:THECLEANWATERACT

Perhaps of even greater importance to persons affected byCWA violations, the EPA's SEP policy refers expressly to the use ofthe policy to review proposed SEPs in settlement of citizen suits._°The plain language of CWA section 505 authorizes citizens toenforce all permit conditions. That section provides; "[A]ny citizenmay commence a civil action... (1) against any person.., who isalleged to be in violation of (A) an effluent standard or limitationunder [the Clean Water Act]...,_,l An effluent standard or limitation

_sPolicy, supra note 2g, at 1$._6Id"

)_;a.)_Id._91d.at 10.

e)Policy, supra note 2g, at 3.'_33 U.S.C. § 1365(a)(I) (2001),

186 J, NAT, RESOURCES& ENVTL.L. [VOL. 16:2

includes "(2) an effluent limitation or other limitation under section301 ... or (6) a permit or condition thereof .... ,,42 This languageclearly contemplates citizen suits to enforce violations of the CWA,but as with civil penalties assessed by agency-initiated administrativeor judicial enforcement, any monies eollecte,d go to the U.S.Treasury, not to the citizen or to satisfy environmental interests inthe area affected by the violation. 43

The CWA citizen suit provision imposes a sixty day pre-suitnotice requirement. 44 The sixty day waiting period is to allow eitherthe EPA or the state regulatory counterpart to proceed withenforcement in its own fight and to allow the alleged violator toattempt conciliation of the claims set forth in the notice. 45 While the

SEP policy and recent case law, to be discussed hereafter, stand for

the proposition that SEPs can be used in the resolution of properlyinstituted citizen suits under the CWA, a comprehensive analysis ofthis approach necessarily must include the underlying requisites forbringing an environmental citizen suit.

Whether fashioned as a suit by a named individual or namedindividuals, or by an organization or association representing theinterests of certain individuals, all threshold statutory andconstitutional requirements must be met. First, as required by 33U.S.C. section 1365(b) and 40 C.F.R. section 135.3, the citizenplaintiff must provide the sixty day pre-suit notice (Notice of Intentto Sue) to the alleged violator, the EPA, and the state in which thealleged violation occurs, with sufficient information in such notice to

enable recipients to identify the dates and the locations of the allegeddischarge or other violation. 46 Absent sufficient Notice of Intent to

Sue, the district court in which the citizen plaintiffs bring the suitlacks subject matter jurisdiction to h_ar the case. 47

The information alleged in the pre-suit notice andsubsequently in the pleadings raises other constitutional requirementsrieeessary to the maintenance of a citizen suit under the CWA,namely standing and the jurisprudential considerations attendantthereto. Taking up the latter first, perhaps the most significant andalso most limiting requirement imposed on citizen plaintiffs iscommonly referred to as the Cavaltney requirement. 4g The SupremeCourt has recogu[zed that citizen suits under 33 U.S.C. section1365(a) cannot be based on wholly past violations, as such suits

42Id.at §._ | 365(f)(2), (0(6).4_Seeid._ld. § 1365(b);40 C.F,R. § 135.3 (2001).451d"

+See 33 U,S.C. § 1365(b);40 C.F.R. § 135.3 (2001)r4_40C,F.R. §§ 135.1"5(2000).4SGwaltneyof Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.49 (1957),

remanded to g44 F.2d [70 (4th Cir. 1988), rev'd inpart, 890 F.2d 690 (4th Cir. 1999).

2001-02] CLEANUP OF CONTAMINATED OYSTER BEDS 187

offended the mootness doctrinefl "The mootness doctrine thus

protects defendants from the maintenance of suit under the CleanWater Act based solely on violations wholly unconnected to anypresent or future wrongdoing, while it also protects plaintiffs fromdefendants who seek to evade sanctions by predictable 'protestationsof repentance and reform. ''s° Under this requirement, the citizenplaintiff could not institute a citizen suit under the CWA for aviolation that occurred Iastyear, last month, or even last week, wherethere is no allegation that the violation is ongoing on the date the suitis instituted.51 Recognizing that CWA violations may be ongoing butnot continuous, the Court in Gwahney went on to hold thatjurisdiction could be predicated on continuous or intermittentviolations saying of an intermittent polluter, "one who violates permitlimitations one month out of every three--is just as much 'in violation'of the Act as a continuous violator.''52 On remand to the FourthCircuit in Gwaltney, the court held that it was sufficient to make agood faith allegation of continuing or intermittent violations in orderto give the court initial jurisdiction, but at trial, the citizen plaintiffwould have to prove that the intermittent violations amount toongoing violations. _3 The court went on to hold that the citizenplaintiff may prove an ongoing violation by either: (1) provingviolations that continue on or after the date the complaint is filed, or(2) adducing evidence from which a reasonable trier of fact couldf'mda continuing likelihood of a recurrence in intermittent or sporadicviolations. _ Under the latter approach, intermittent or sporadicviolations would cease to be ongoing only when there is no reallikelihood of repetition, ss The greatest limitation resulting from this"ongoing violation" requirement is that it effectively precludes citizensuit under the CWA to address a single spill or release incident,though in fact, these incidents may cause a lion's share of the impacton water quality. It remains unclear what frequency or character ofviolation gives rise to a "likelihood of recurrence" but a good faithallegation of such violations should be sufficient to surviveobjections raised under Crwaltney.

The constitutional requirement of a "case or controversy"requires that a party have standing to pursue or continue the

¢_Gwaltney,484 U.S. at 49, 64.S°ld.at 66-67 (quoting United Statesv. Oregon StateMedical Society. 343U.S. 326,

333 (1952)).5_ld"

S21d.at 63. (emphasis_kled).53ChesapeakeBay Found., Inc. v. Gwaltney of Smithfield,Ltd, 844 F.2d 170, 1?1-

172 (4th Cir. 1988),Stld.at 171-172 (emphasis added)._Std.at 172.

188 J. NAT. RESOURCES_ ENVTL.L. [VOL. 16:2

litigation, s6 Under the CWA citizen suit provision, a "citizen"

entitled to bring suit is defined as "a person or _ersons having aninterest which is or may be adversely affected. ''5 In order to haveindividual standing, "Art. III requires the party who invokes thecourt's authority to 'show'that he personally has suffered someactual or threatened injury as a result of the putatively illegalconduct of the defendant,'...and that the injury 'fairly can be tracedto the challenged action' and 'is likely to be redressed by afavorable decision. "'58 Where an organization or association sueson behalf of its members, the organization or association must meetthe requirements of "representational standing.' .... Representationalstanding' is appropriate where: l) the organization's members wouldhave standing to sue on their own, 2) the interests the organizations_ks to protect are germane to its purpose, and 3) neither the claimasserted nor the relief requested requires individual participation byits members. "59 Whether suit is brought by an individual or anorganization, the three constitutional de minima requirements mustbe met for the citizen suit to go forward. 6°

A recent opinion out of the Eastern District of Washingtonconsiders the standing issues in the context of a CWA citizen suit,discussing not only the settled constitutional and jurisprudentialrequirements but also the considerations specific to CWA violationsand suits brought to redress those violations. 61 In CommunityAssociation for Restoration of the Environment (CARE) v. HenryBosma Dairy, 62 an environmental organization brought an actionagainst several dairies under the CWA and correspondingWashington Clean Water Act citizen suit provisions, allegingdischarge of animal manure waste into a joint drain, canal, and riverin violation of both the CWA and state water quality provisions. 63 Indiscussing its opinion, the court took up each of the three corerequirements of Article HI standing, finding in each instance that thecitizen plaintiffs had satisfied the constitutional requirements. 64Taking up the "injury in fact" requirement first, the court in CAREcited United States v. Students Challenging Regulatory Agency

_SeeU.S. CONST. art. Ill, § 2, cl.I.s_33 U.S.C. § 1365(g) (1994).

SSValley Forge Christian College v. Americans United for Separdtion of Church andState, 454 U.S. 464, 472, (1982) (quoting Simon v. E.K. Welfare Rights Org, 426 U.S. 26, 38,41, (1976)).

59Pub. Interest Research Group ofN,J., In¢, v. Pow¢l] DuffTyn Terminals Inc., 913F.2d 64, 70 (3rd Cir. 1990).

_°ld"

61Cmty. Ass'n for the Restoration of the Env't (CARE) v. Henry Boston Dairy, 65 F,Supp2d. 1129 (E.D, Wash. 1999),

62td"aZtd. at 1132._See id.

2001-02] CLEANUP OF CONTAMINATED OYSTER BEDS 189

Procedures (SCRAP), 65as support for the proposition that the size ofthe injury is not germane to the standing analysis and that injury in

the constitutional sense "need not be large, [no more than] an

'identifiable trifle' will suffice. '_ In CARE, the citizen plaintiffs

alleged injury to their interest in recreating on waters affected bypollution, and the court found injury to this aesthetic or recreational

interest sufficient to confer standing, 67citing a similar finding by theSupreme Court decision in Sierra Club v. Morton. 68

The injury to oyster farmers where oyster habitat is affected

and diminished, often resulting in the closing of oyster beds as a

direct casualty from pollution of the waters in which the oysters live,is surely no less than the recreational interest recognized in SierraClub v. Morton, and more recently, in CARE v. Bosma. _9 The most

likely argument raised to the injury facet of. standing is that theoyster farmers have no protectable property interest in the state

waters and water bottoms in which the oysters are found. While it isclear that ownership of the water bottoms is vested in the State of

Louisiana, 7° many commercial oystcrmen in Louisiana hold state

oyster leases, providing rights to harvest oysters from a designatedarea. _t In Avenal v. United StatesJ 2 owners of state leases for water

bottom lands used for oyster propagation brought takings claims

against the United States for damages to their oyster beds caused by

freshwater diversion projects. 73 The court ultimately found notaking, but not before recognizing that the leaseholders had a

recognizable property interest," a state-created propertY74interest, inthe water bottoms on which their leases were located. The court in

Avenal described the scope of the oystermen's rights in the water

bottom as including the right to harvest and the correlative "right todamages when the acts of another harm the oyster beds. ''75 The

decision in Avenal stands as authority for the existence of a

constitutionally protectable property interest in state-granted oysterbed leases, and injury to any such protectable interest clearly would

satisfy the injury-in-fact requirement of Article III standing.

65412 U.S, 669 (1973)._CARE, 65 F. Sepp, 2d at 1139, (quoting United States v. Students Chal[_mging

Regulatory Ag_mcy Prooedurcs (SCRAP), 412 U.S. 669, 689, n.14.).671d.at i 140.

_405 U.S. 727, at 753 0972). •

_See geaerally, Cmty. Ass'n for the Restoration of the Env't (CARE) v, Heray

Bosma Dais, 65 F. Supp2d. 1129 (E.D. Wash. 1999).'VLA.CIV. CODE ANN. art, 450 (2000).7'See generally, LA. REv, STAT. ANN. § 56:435 (2000.72100 F.bd 933 (Fed. Cir, 1996).n $ee generally, id._4td. at 936.7Sld. at 937.

190 J. NAT. RESOURCES & ENVTL. L. [VOL. 16:2

As with the injury-in-fact requirement for standing, thecourt in CARE v. Bosma devoted considerable attention to the

remaining standing elements of traceability and redressability. 76 The

"fairly traceable" requirement for standing "is not equivalent to arequirement of tort causation," but only relates to whether the

defendant's conduct contributed to the injury alleged. 77 In the

context of CWA violations, "the requirement that plaintiff's injurybe 'fairly traceable' to the defendant's conduct does not mean that

plaintiffs must show to a scientific certainty that defendant's effluent

alone, caused the precise harm suffered by the plaintiffs. ''78 InNatural Resources Defense Council, Inc. v. Watkins, 79the court held

that even though it seems highly probable that polluters other than

the named defendant substantially contributed to the river pollution

complained of, it does not follow that a plaintiff is deprived ofstanding to sue where the named defendant has also contributed to

the pollution that interferes with the plaintiff's interest, s° The citizen

plaintiff in the CWA citizen suit "does not have to prove that [the

defendant] was the only polluter, nor does the plaintiffhave to provethe exact amount of pollution" contributed by the defendant, sl

Similarly, with the element of constitutional redressability,the citizen plaintiffs need not show that success in the citizen suit

will completely restore the injured party to his pre-injurycondition, s2 In the context of the CWA, though the plaintiffs'

interests may continue to be limited by the existence of otherpolluters, even after issuance of compliance orders and assessmentof civil penalties, redress in the broader, constitutional sense is

nevertheless provided. Even moderate success resulting fromcitizen enforcement further expresses the goals of the CWA, to

"restore and maintain the chemical, physical, and biologicalintegrity of the Nation's waters. "s3 Plaintiffs do not have to show

that the waterway will be returned to pristine condition in order tosatisfy the minimal Article IIi requirements of redressability, s4 To

argue otherwise ignores the deterrent effect on a polluter amenable

to assessment of civil penalties in a citizen's suit brought forviolation of the CWA. Redress is also achieved where other

7<'Cmty.Ass'nfortheRestorationoftheEnv't(CARE)v. HenryBnsmaDairy,65F.Supp2d.1129,1140-43(E.D.Wash.,1999).

"Pub.InterestResearchGroupof N.J., Inc.v. PowellDuffrynTerminals,Inc., 913F.2d64,72 (3mCir.t990);(citationsandfootnoteomitted).

_sCARE1,.Bosraa,65F.Supp2d.at t 141(citingPowellDuffryn, 913F.XIat 72).79NP_C v. Watkins, 954 F.2d 974 (4th Cir. 1992).Said.at 980.

s_CJRE v. Bosraa, 65 F. Supp2d. at 1141.aZSee id.

_33 U.S.C. § 1251(a)(1994).

"*Pub. Interest Research Group of N.J., Inc. v. Pow¢ll Duffryn Terminals, Inc., 913F.2d 64, 73 (3mCir. 1990).

2001-02] CLEANUPOFCONTAMINATEDOYSTERBEDS 191

polluters modify their behavior in order to avoid being assessedpenalties themselves in CWA citizen suits. 85

Traceability and redressability, under the standards discussedabove, pose no real obstacle to the Louisiana oyster farmer as aCWA citizen suit plaintiff. In terms of point source pollution,violations of permitted effluent standards and limitations are self-

reporting, s6 In addition to the inclusion of the location of each pointsource or outfatl, as well as the waters to which discharges arereleased in each water permit, permittees provide dischargeinformation to the Louisiana Department of Environmental Quality(LDEQ) and the EPA each month. _7 Any violation is evident on theface of those reports. TraceabiIity may require no more than ashowing that the types of pollutants released from a given facility areimpacting water quality in the affected area and that, in fact, thedischarges from a given facility flow to that affected area. However,where the pollution source is outfall from coastal camps, or nonpointsource pollution, this element will be more difficult to show andrequire a more sophisticated level of evidence.

The use of SEPs in the citizen suit context is an essentiallyunexplored approach to compelling clean up of polluted waters.Though, as pointed out earlier, the EPA's SEP policy refersexpressly to review proposed SEPs in settlement of citizen suits, ssIn a recent unreported opinion out of the Eastern District of

Louisiana in United States Public Interest Research Group v. BayouSteel Corporation, 89involving a citizen suit brought under the CleanAir Act (CAA), the court entered a consent decree and orderfinalizing settlement of all claims brought by citizen plaintiffs. 9° InBayou Steel, the citizen plaintiffs and industry defendant enteredinto a binding and enforceable agreement under which the claims of

the plaintiffs are settled, the defendant denies any liability, andconsents to pay monetary damages and to perform specifiedSupplemental Environmental Projects providing pollution reduction

and pollution prevention over a specified period of time. 91 Thoughthe consent decree provides expressly that neither EPA nor LDEQpursue enforcement against Bayou Steel after receiving the requiredpre-suit notice from the citizen plaintiffs, it does not indicate thateither the EPA or the LDEQ participated in the development of thesettlement or SEPs nor that either agency approved the agreement

_s/d.a_40 C.F.R. § 122.4f (1)(6) (2000).

8'See 40 C.F.R § 122.41 (I)(4) (2000)._Policy, supra nole 28, at 2.

_No. C[v.A.96-0432, 1999 WL 675203, at *7 (E.D. La. 1999).*Old.9|ld. at *8.

192 J. NAT. RESOURCES& ENVTL.L. [VOL. 16:2

reached. 92 The CWA citizen suit provision contains a clause thataddresses the issue of consent judgments entered in CWA actions towhich the government is not a party. Under 33 U.S.C. section1365(c)(3), no consent judgment shall be entered in an action inwhich the United States is not a party prior to forty-five daysfollowing the receipt of a copy of the proposed consent judgment bythe Attorney General and the Administrator. Assuming the partiesand the court in Bayou Steel complied with this provision, it wouldfollow that the absence of objection to the entry of the consentdecree and order amounts to acquiescence on the part of thegovernment to the resolution of liability of the defendant asspecified in the judgment.

As a matter of litigation strategy, if the desired result orredress obtained by bringing the citizen suit under the CWA is tocompel the responsible parties to clean up the pollution they caused,the citizen plaintiff will pursue settlement, where SEPs may beincluded, rather than litigation to judgment, where there is nojurisprudential precedent for fashioning such relief. Referring backto the incentives of the alleged violator to settle with the EPA and toagree to perform environmentally beneficial projects, the sameincentives exist in the citizen suit context. In the Fifth Circuit in

particular, the fear of the potential penalty resulting from fulladjudication may be the single greatest motivating factor for thealleged violator to settle the claims of citizen plaintiffs. As morefully discussed in United States v. Gulf Park Water Co., 93 a caseinvolving a civil penalty assessment for violations of the CWA inconnection with discharge of pollutants into waters of United Stateswithout the required National Pollutant Discharge EliminationSystem (NPDES) permit, the approach to penalty assessment in the

Fifth Circuit may result in _enalty assessments considerably higherthan in other jurisdictions. 9 Courts around the country have takenone of two common approaches to environmental penaltyassessment, either "top down" or "bottom up. ''95 Section 1319(d) ofthe CWA mandates civil penalties for each violation of the Act. 96Currently, the violator is subject to a civil penalty not to exceed$27,500 per day for each violation. 97 The Filth Circuit, in UnitedStates v. Marine Shale Processors, 9_ noted that "when imposing

9_ld,

9a14 F. Supp2d. 854 (S.D. Miss. 1998),_See generally, id._ld. at 858-

_33 IJ.S.C. § 1319(d) (199,1)._7Id.; Act of Apr. 26, !996, Pub. L. No. 104- [34. The statutory maximum penaity for

violations of the Clean Water Act was increased to $27,500 pet clay, per violations occurringat_w January 30, 1997. ld.

_gl F.3d 1329, 1337 (Sth Cir, 1996).

2001-02] CLEANUPOFCONTAMINATEDOYSTERBEDS 193

penalties under the environmental laws, courts often begin bycalculating the maximum penalty. ''99 The courts are split, however,on which methodology to use in assessing an appropriate civilpenalty. Some courts use the "top-down" method of penaltycalculation, in which the court begins the calculating the penalty atthe statutory maximum and adjusts downward considering thefactors provided in Section 309(d) of the CWA. Other courts use the"bottom.up" method of penalty calculation, in which the courtbegins calculating the penalty using the defendants' economicbenefit of noncompliance and adjusts upward or downwardconsidering the Section 1319(d) factorsfl ° Inasmuch as the statutedoes not require either method, t°1 the courts are free to elect whichmethod to use. 1°2 While the FiRh Circuit has not clearly indicated apreference, Marine Shale would tend to weigh in favor of the"top-down" method. Further, the district courts in the Fifth Circuithave taken the appellate court's lead, and this may be impetusenough to bring alleged violators to the negotiating table, where allsettlement options, including SEPs, can be fully explored, to3

V. LOOISIANA'S ENVIRONMENTAL QUALITY ACT AND WATER

CONTROL LAW

The remainder of the paper will focus on solutions based on

Louisiana's law and regulations in particular. While some aspects ofthe discussion will be narrowed by this focus, many of the conceptswill carry over and have relevance on a general state level. Thetopics covered will look to Louisiana's water quality andenvironmental laws, rather than tort law thoories for remedies, in anattempt to provide a window to some of the unique and/or lessutilized legal provisions.

Louisiana's Environmental Quality Act 1°4was passed topromote the "protection of the public welfare and property of thepeople of Louisiana that there be maintained at all times...clean airand water resources, preservation of the scenie beauty and ecologicalregimen of certain free flowing streams.. ,,105 The Act establishedthe agency structure, basic media-basexl regulatory programs andoverall enforcement provisions._°6 Louisiana's Water Control Law t°7

_Sld. at 13.$7; (citing At[ States Legat Found., Inc. v. Tyson Foods, inc., 87 F.2d1_28, 1142 (ll_ Cir. 1990).

_a_UnitodStales v. Gulf Park Water Co., 14 F. Supp2d. 854, 858 (S.D, Miss. [998).tilL//.

m/a5

_See id. at _S&

1°4LA,R.F_.V,STAT, ANN. § J0:2002 (West 2000).'°_ld. § 30:2002,

_ld. § 30:2001,

194 J. NAT. RESOURCES & ENVTL. L. ]'VOL. 16:2

governs the discharge of any substance into the waters of the state

and establishes the systefn of permits, variances and licenses

required for said discharges. _°8 On August 27, 1996, in response to

adjustments and additions to the state's water permitting system, theEPA announced that Louisiana's application to administer and

enforce the NPDES" program for discharges into state waters had

been accepted. _°9 The new program is referred to as the Louisiana

Pollutant Discharge Elimination System (LPDES). _l° Therefore,

point source polluters in Louisiana are issued one permit that

satisfies both the state and federal discharge requirements, i_tTwo important provisions to examine in this discussion are

the ability under Louisiana's law to compel mitigation and

remediation of resources affected by pollution discharges and theopportunity for citizens to take actions to enforce state laws.

Fortunately, Louisiana law provides the basis needed for both

remediation and enforcement through citizen suits.

Within the LPDES program, La. R.S. 30:2077 compels

remedial action when unpermitted discharges have negative impactson resources. I_2 The law requires immediate notification to the

LDEQ secretary of any release of pollution into state waters that

contravenes state law. _3 Once notified, the violator may berequested to perform remedial clean up of the affected location. ]]4The statute states that the goal is to "... eliminate those releases that

may reasonably pose a threat to human health or the environment

and to remediate contaminated media, taking into considerationcurrent and expected uses. "tt5 The language in the statute itself issparse, with only one paragraph dedicated to remediation of

pollution, and unfortunately in practice the LDEQ has not utilized

this provision to its full capacity, tt6 The accompanying regulations

also reiterate the duty to mitigate without detailing any specificrequirements. _7 However, the potential use of remediation,specifically in the clean-up of contaminated oyster beds, is animportant tool to include in the realm of possible solutions.

'°TLA. REV. STAT.ANN. § 30:2071 (West 2000)I°Sld. § 30:2077.

're"Louisiana Delegated NPDES Program Authority," La. Envtl. ComplianceUpdate, Vo]. 4, Issue 9, September 1996.

_l°LA. REV. STAr. ANN. § 30:2073(I) (West 2001).III ]d,

IJ2td. § 30:2077.II_Id"1J4ld"

ILSLA.REV.STAT. ANN. § 30:2077 (West 2001).

H_Telephone Interview with Christopher Rateliff, Attorney, LA Dept. ofEnvironmental Quality, I.agal Division, (Oct. 5, 1999).

LI;LA.AI_Mr_. CODE lit: 33, § 2355 (D) (1998).

2001-02] CLEANUPOFCONTAMINATEDOYSTERBEDS 195

AS mentioned above, the Louisiana Environmental QualityAct provides general enforcement provisions for the state'senvironmental protection taws. Specifically, the Act establishes acitizen's right to bring suit in response to a violation of the state'senvironmental laws, tls as it must do to comply with the generalprovisions of the CWA as well as with the delegation of permittingauthority under the CWA. In a parallel to the paper's previousdiscussion of federal citizen suits, it is important to highlight the useof these types of suits to enforce state environmental laws. However,due to the extensive statement on the uses and advantages of citizenssuits in oyster bed contamination situations previously stated in thispaper, this issue will not be examined again here. Because Louisianahas assumed the federal NPDES program, the issues here mirror theones already reviewed.

VI. OTHERSTATEOPTIONS

A. Louisiana's Beneficial Environmental Projects

Whetx considering environmental enforcement actions to betaken when a violation(s) occurs, the LDEQ has a number of optionsavailable through both the Louisiana Environmental Quality Act]19and/or its associated regulations. When The LouisianaEnvironmental Quality Act specifically identifies the possibleenforcement options as: civil suits for damages, emergency ceaseand desist orders, compliance orders, civil penalties and criminalpenalties, t20

Recent legislative and regulatory activity in Louisianaregarding the use of environmentally beneficial projects warrantsmentioning as well. nl On March 10, 2000, the LDEQ promulgatedan Emergency Rule regarding its "Beneficial EnvironmentalProjects" (BEP) rtlle. 122 The Louisiana BEP rule is similar in scopeand stated purpose to the EPA SEP policy, intended to facilitate thesettlement of environmental actions and promote the use of BEPs.The BEP provisions were finalized and adopted as a LDEQregulation on August 20, 2000.123

tIsLA. REV. STAT. ANN. § 30:2026 (West 2000).Jlgtd. § 30:2025.12fl_d"

m"...the seeretary may enter into settlements of civil penalty assessments whichallow the respondent to perform environmentally beneficial projects and/or provide for the

payment to the state which shall he considered a civil penalty for tax purposes." LA. REV. STAT.At,,'N.§30-2050.7(E) (West 2000).

JZZLA.ADMtN.COPE tit: 33, § 2501 (West 2000).a231d"

196 J. NAT. RESOURCES& ENVTL.L. [VOL. 16:2

The newly promulgated BEP regulations will allow theinclusion of BEPs as part of a settlement or penalty assessment of aviolation. The regulatory definition of a BEP states that BEPs are"projects that provide for environmental mitigation which thedefendant/respondent is not otherwise legally required to perform,but which the defendant/respondent agrees to undertake as acomponent of a settlement of a violation or penalty assessment+ "124These provisions will afford the LDEQ the opportunity to negotiatewith violators in order to create solutions that not only meet the

statutory directives but further enhance the natural resources andpublic welfare within the state. While there is little administrativeguidance and no jurisprudence on this most recently added provisionregarding BEPs, the similarities to the EPA SEP policy wouldindicate that the guidance and jurisprudence on the federal policywill be, at the very least, instructive in defining the contours of theprovision. The regnlations identify eight categories of BEPs thatmirror the federal SEP policy; public health, pollution preventionand reduction, environmental restoration and protection, assessmentand audits, environmental compliance promotion, emergencyplanning, preparedness and response and other projects+=25 Otherprojects are +'projects determined by the department to haveenvironmental merit that do not fit within at least one of the seven

categories above [which] may be accepted if they are otherwise fullyconsistent with the intent of these rules. ''126 The regulations offer

flexibility to the state to design projects when it is deemed

appropriate.In oyster bed pollution situations, the use of BEPs by the

LDEQ could result in increased opportunities for oyster leaseholdersdamaged by point source pollution to see present and future benefitsto water quality. Enforcement actions against these violators maynow include environmental projects and will correct damage causedby the violation, as well as projects designed to decrease thepossibility of future violations that could adversely impact the waterquality and oysters depending upon clean water habitats. Forexample, a compliance order may include a beneficial projectrequiring a violator to enhance the condition of the local ecosystemor geographic area. This in turn would create enhanced water qualityfor the damaged oyster leaseholder, which is a step beyond thatwhich the previous remedies would have provided. "DEQ believesthe addition of this new BEP regulation in the enforcement 'tool box'will greatly enhance the effectiveness of the overall enforcement

t_Id. § 2503.t_ld. § 251)5.126Id.§ 2505(A)(8)+

o2001-02] CLEANUPOFCONTAMINATEDOYSTERBEDS 197

process. BEPs also provide enhancements that exceed reasonableprecautions and go above and beyond the regulatoryrequirements. ',_2_

To ensure that Louisiana develops an effective program that

•truly meets the needs of the local citizens affected by violations ofthe state's laws, a heightened duty to involve the public exists. Whilethe decision to enter into a settlement including a BEP falls squarelywithin the discretion of the agency involved, 12s there is an

opportunity for public involvement in the BEP process, as allsettlements or compromises, i.e. BEPs, are to be subject to a period

of public review. ]29 During this forty-five day period, writtencomments from the public are invited on the proposed settlementagreement or compromiseJ 3° In the case of BEPs, more thoroughpublic participation elements could be added to the program throughamendments to the current legislation and/or regulation. Forexample, mandatory public meetings in the area to be affected by theBEP would allow input, questions and suggestions from those withthe most at stake in the local environment.

B. Clean Water State Revolving Fund

The Clean Water Act provides another possible alternativepotentially available to persons affected by the degradation of waterquality resulting from point source pollution. The CWA establishesthe Clean Water State Revolving Fund (SRF). TM Under this

program, eligible projects receive low interest or no interest loansfrom the state fund to undertake the qualified water quality

project. D2 The source of repayment need not come from the projectitself nor the person or persons proposing the project. Repaymen{sources can include fees paid by developers on other lands,recreational fees (fishing licenses, entrance fees), a dedicatedportion of local, county, or state taxes or fees, storm watermanagement fees, wastewater user charges and donations made byprivate parties, and potentially even the parties responsible for thenegative impact on water quality that requires such project to beundertaken. 133 In creating the SRF, Congress provided a

m"Compliance Comet; Beneficial Environmental Projects" LA. ENVTL. UPDATE,Fall 2000 at 1I.

_2*LA.ADMnq. CODE tit: 33 § 250l (West 2000).

_LA. REV. STAT. ANN. § 30:2026 (West 2000).

I_aId. § 30:2050.7(A)-(B).1_'33 U.$.C. § 1381 (2001).13_See The Clean Water State RevoLving fund Program, office of WastewaCer

Management, available at http://www.epa.gov/owmitnet/cwsrf.htm, (last visited Nov. 6, 1999).refunding Shellfish Restoration and Rcmodiation Projects with the Clean Water

State Revolving Fund, EPA: Office of Water, available at

198 J. NAT. RESOURCES & ENVTL. L. [VOL. 16:2

mechanism through which states would be able to fund virtuallyany type of water quality project. Such projects include nonpoint

source, wetlands, estuary, and other types of watershed projects, as

well as more traditional municipal wastewater treatment systems. _34Under the CWA SRF provisions, no category or type of project is

given any more preference than the others. The SRF has three

major categories of eligible projects: (1) Publicly ownedwastewater treatment facilities, (2) Nonpoint source projects

(publicly or privately owned), and (3) Estuary management projects

(publicly or privately owned). 135 Among the types of shellfishremediation projects that are SRF fundable are: urban runoff,

wastewater treatment plants and combined sewer overflows,

nonpoint agricultural runoff, malfunctioning septic systems, pump-out stations for marinas and boating facilities and restoration of

shellfish habitat including reef structure. 136

The EPA has recently highlighted the use of the SRF for the

purpose of funding shellfish restoration and remediation projects in adocument titled Funding Shellfish Restoration and Remediation

Projects with the Clean Water State Revolving Fund. 137 The

document described two examples in which the SRF providedmonies for shellfish improvements. In the City of Port Townsend,

Washington, the SRF was used to preserve a wetland buffer area,thereby protecting valuable oyster beds. _3s In Des Moines,

Washington a sediment trap/pond facility was developed to provide

flood protection, and sediment removal for the local oysterproduction area. 139 In addition, four projects "funded as grants under

Section 319, [that] would be potentially eligible for loans from the

[SRF]" are detailed in the document. 14° Dr. Kelly Ruseh ofLouisiana State University, Department of Civil and Environmental

Engineering led one of those projects, called the MarshallUpswelling System. The objective of this project was to focus on

developing an alternative wastewater treatment system for coastalLouisiana and to study its ability to provide an effluent of suitable

htlp://www.epo.gov/owmlpdfs/sfish.pdf(last visited Nov. 6, 2000) [hereinafterFundingShellfish].

I_Seegenerafly,33U.S.C.§ 1381(2001)._aSFundingShellfish,supranote133.1J6ld"1371d.EPAhasalsohighlightedthepot_tial useof theCleanWaterStateRevolving

Fundasa mechanismto achievethe goalsof the CleanWaterActionPlan.Oneof the keypointsin theCleanWaterActionPlanis thecleanupofcontaminatedshellfishbeds.See TheCleanWater State RevolvingFundand the CleanWaterAction Plan, E.PA., Oftiee ofWastewaterManagement,availableathttp://www.epa.gov/OWM/ewpfaet.lXIf(lastvisitedDee.t9, Z000).

lJSSee Funding Shellfish, supra note 133.lJgld"J4Old"

20014)2] CLEANUPOFCONTAMINATEDOYSTERBEDS 199

bacterial quality for oyster harvesting waters. NI These concreteexamples provide the oyster industry with a strong precedent for thetype of projects possible from the SRF.

On its face, cleanup of polluted waters using the SRF seems tobe a logical alternative that would comport with the stated purpose ofthe SRF, while furthering the ultimate goal of restoring waterquality. However, eligibility for the program will vary by state. InLouisiana, the SRF seems irrevocably committed to wastewatertreatment projects. In fact, the LDEQ SRF division is aptly called

the Municipal Facilities Revolving Loan Fund Program) 42 Its statedmission, however, is to provide financial assistance for projects toenhance and improve water quality in Louisiana) 43 All of therevolving loans made to date in Louisiana have financed municipalwastewater treatment works projects, although federal law requiresconsideration of other types of water quality projects if they addresssignificant water quality problems and a willing and capableborrower exists. _44 Accordingly, the SRF must be considered aviable cleanup option available under the CWA. In fact, the EPAstates that those interested in using the SRF to clean up pollutionaffecting shellfish production "should seek out their [SRF] programs,gain an understanding of how their state program works andparticipate in the annual process that determines which projects arefunded. ,,|45

Louisiana's regulations for the state's Municipal FacilitiesRevolving Loan Fund Program set out a prioritization system basedon a number of factors, such as segment priority ranking, population,needs and uses. 146 All applications go through the state'sprioritization system and are ranked before the public is given achance to comment on the projects._47 Annually, the public is given achance to discuss and comment on the state's priority list for the nextyear. _48The result of Louisiana's narrow focus on municipal facilitiesand the limited chance for public involvement is a constrictedprogram that does not meet its potential as outlined in federal law andencouraged by the EPA. In order to remedy this shortcoming andexpand Louisiana's program to realize its full potential as a vitalwater quality improvement tool, new legislation and accompanyingregulation are suggested. Legislative changes would be required to

_4_RobertE.Watson.supranote12,at2.t4ILA. REV.STAT,ANN,§30:2078(West2000).t43Id,§30:2078(A),t'_lnterviewwithCatherineLundergan,LADepartmentofEnvironmentalQuality,

(Nov.29,2000)._4_FundingShellfish,supranote133._LA.ADM_.CODEtit.33,§123(B)(5)tbl.A-I(1998).t"'SeeM-§2123(C)(8).t481td.

200 J. NAT. RESOURCES& ENVTL.L. [VOL. 16:2

expand the current program to include the types of projects describedabove, such as wetland buffer projects, innovative septic systems forcoastal camps, and alternative sediment/floodwater pond facilities.Amendments to the regulations could ensure that public participationin the project selection process is designed to give the interestedparties a real voice in the process and prioritization of the state'sprojects, beyond the m/nimum public comment procedures.

C. State Funds, Task Forces and Boards

There are a number of oyster related programs, funds, andtask forces that command recognition as possible remedialopportunities to oyster leaseholders damaged by point source waterpollution. These programs all have the potential to provide valuableservices to the oyster industry by funding projects to improve oysterproduction, increasing enforcement of oyster protection and/orrevising legislation to better respond to oyster production needs.

The Louisiana legislature created the Oyster Task Force witha mandate "to study and monitor the molluscan industry and to makerecommendations for the maximization of benefit from that industryfor the state of Louisiana and its citizens. ''_49 The task force is

charged with monitoring the water quality requirements of the state inshdlfish production areas and is directed to make recommendationsto state agencies to further the oyster industry's success within thestate, ts° While the task force does not have the authority to actindependently in a regulatory or enforcement role, it has been andwill continue to be influential in passage of legislation enacted toprotect oyster resources from damages. _st Specifically, the task forcehas been instrumental in the passage of legislation to assist oysterfarmers in areas targeted for coastal restoration projects. In thefuture, the task force could continue to assist the oyster industry bysupporting the legislative changes suggested in this paper.

The Oyster Strike Force is a unit within the Department ofWildlife and Fisheries' Enforcement Division that concentrates on

enforcement of oyster regulations within Louisiana's coastal area. 152This unit has specialized equipment and training all geared towardenforcement of the current regulatory requirements. 153 This sort of

t49LA.REV. STAT. ANN. § 56:42t (A) (West 2000).ts°see id. § 56"421(E}(1)-(4).

tStRon Dugas, Mollusc Program, Louisiana Department of Wildlife and Fisheries,available at http://www.w|f.state.la.us/apps/netgear/index.asp?cn=lawlf&pid=550 (last visited1an. 30, 2001).

_hDyster Strike Force, supra note 5, at para,8,_5_Id.al para. 8-9.

2001-02] CLEANUPOFCONTAMINATEDOYSTBRBEDS 201

focused patrolling of Louisiana's oyster production areas offers anadditional defense against illegal discharges into these waters.

The legislature also created the Oyster Lease DamageEvaluation Board in order to mediate damage claims that arisebetween oyster leases and mineral owners. Specifically, the board is"to effect an equitable solution . . . which will result in fair andpredictable treatment to the oil and gas industry while assuring theoyster fishermen actual compensation for damages to their oysterbeds due to mineral activities. ''_54 Again, this provides anotherimportant avenue for recovery when oyster production is threatenedor destroyed by point source discharges.

The Oyster Sanitation Fund was established as a special fundwithin the state treasury, t55 The monies in the fund consist of grantsand donations, as well as monies collected from a surchargeestablished in La. R.S. 30:2075.1. _56The surcharge is a "fiat rate oftwenty five percent of the department imposed [water discharge]permit fee . . . for discharges in the Atchafalaya, Terrebonne,Barataria, Lake Pontclaartrain and the Mississippi River water qualitymanagement basins...,,_57 The funds must be used for sanitationpurposes, pursuant to appropriation by the legislature, t58 TheSecretary of either the Department of Health and Hospitals (LDHH)or the Department of Wildlife artd Fisheries (LDWF) may petition thetreasurer for monies in order to conduct projects that protect, enhanceor restore sanitary conditions directly related to the molluscanshellfish industry. _59One way to expand this program's effectivenesswould be to allow for public suggestions or requests to be made tothe LDHH and LDWF about sanitation projects in which localconstituents have an interest. Giving the public a voice in the waythe monies from this fund are spent would allow oyster farmers anopportunity to present possible solutions to persistent problem areas.

Vll. CONCLUSION

This commentary has addressed the various methods

available to private parties to compel clean-up under the Clean WaterAct and the Louisiana Water Control Law. Though this discussionhas focused on remedies that would provide redress to oyster farmersaffected by pollutant-contaminated oyster habitat, the approachesdiscussed are equally applicable to any person affected by the

_'_LA, REV. STAr, ANN, § $6:70t).10 (West 2000).15Std.§ 40:5.10(A).J_ld,

_71d. § 30':2075.1(I]).t_*Id. § 40:5. IO(C)-(D).159"LA.REV. STAT.ANN. § 40:5.10(C) (West 2000).

202 J, NAT. RESOURCES& ENVTL.L. [VOL. 16:2

pollution of our State's waters. Admittedly, some approachesdiscussed are more novel than others, but there is real potential forcitizen-driven clean-up using no more than the current environmental

law, regulations, and applicable jurisprudence.