United States v. Cargill, Inc.

OPINION

In this case, the Court has had thrust upon it the conundrum of defining, in a particularly unusual and complicated situation, the respective roles of the state and federal governments in the enforcement of the Clean Water Act (the “Act”), 33 U.S.C. §§ 1251 et seq. The Act is representative of the class of statutory pronouncements which, while recognizing and providing for Federal primacy in their implementation and enforcement, also create (or preserve) a significant role for the states and private citizens. Thus, the tensions inherent in a federal system are recreated, if not exacerbated, by the Act, which ofttimes fails to create clear boundaries for the respective authorities of the federal government, the states and the people. See American Iron and Steel Institute v. EPA, 526 F.2d 1027, 1074 (C.A.3, 1975) (Adams, J., concurring). In approaching the particular problems posed by this case, this Court will attempt to keep in mind, Judge Goldberg’s concluding remarks in Save the Bay, Inc. v. Administrator of the EPA, 556 F.2d 1282, 1296-97 (C.A.5, 1977):

We have been called upon to examine a statutory scheme that has the potential for the optimum of federalism. The legislation contains problems of accommodation that will require additional interstitial interpretation and environmental exploration as the partners pirouette. The success of their federalist venture will *737 depend not only upon the grace, but also the substance of movement by both partners in the ballet. We have endeavored to ink a most self-effacing role for the federal judiciary, one which should foster a harmonious background to the dance and necessitate intervention only when a point of unmelodious discord seriously threatens the contrapuntal balance.

The present action was brought by the United States at the request of the Environmental Protection Agency (“EPA”) under section 309 of the Act, 33 U.S.C. § 1319, against Cargill, Inc. (“Cargill”), a Delaware corporation, to enjoin Cargill from further violating the terms of a wastewater discharge permit issued to it pursuant to section 402 of the Act, 33 U.S.C. § 1342, and to impose civil penalties for past violations of that permit. 1 Jurisdiction is alleged to exist under 28 U.S.C. §§ 1345 and 1355 and 33 U.S.C. § 1319. Cargill without answering the complaint moved to dismiss, abate, or stay the action 2 or to abstain from assuming jurisdiction over the action on the ground that a still pending suit had previously been filed by the Delaware Department of Natural Resources and Environmental Control (“DNREC”) in state court seeking identical relief. Cargill filed a brief in support of its motion 3 supported by affidavits and other documentary evidence, 4 in response to which the EPA filed an answering brief 5 and supporting evidence. 6 Cargill also filed a reply brief 7 with still other supporting evidence. 8 Oral argument was held on September 25, 1980 and the motion is now ready for decision. 9

Because of the delicate nature of the Court’s task and the extraordinary circumstances giving rise to Cargill’s motion, a somewhat extended discussion of the statutory and factual background of the case is necessary.

I. Statutory Background: The Clean Water Act.

Congress clearly and unambiguously stated that the principal purpose of the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 86 Stat. 816, was to restore and maintain the purity of the nation’s waters and eventually to eliminate the discharge of all pollutants into them. Section 101(a) of the Act, 33 U.S.C. § 1251(a) provides:

The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter—

(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; ....

The Congressional statement of policy also provides that while the primary responsibility for the administration of the Act was to lie with the Administrator of the EPA (“the Administrator”), 10 the “primary responsibilities and rights of States” to control water pollution and manage natural resources were to be recognized, preserved and protected, 11 and the participation of the public *738 was to be provided for, encouraged and assisted. 12

*737 It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority *738 under this chapter. It is the policy of Congress that the States manage the construction grant program under this chapter and implement the permit programs under sections 1342 and 1344 of this title. It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and elimination of pollution, and to provide Federal technical services and financial aid to State and interstate agencies and municipalities in connection with the prevention, reduction, and elimination of pollution.

The means prescribed by the Act for implementing the primary goal of cleaning up the nation’s waters reflects the Congressional intent to encourage cooperative federalism. However, the Act’s imprecision in delineating the exact roles of the various participants has often done much to exacerbate federal/state tensions, as shown by the present case. See EPA v. California, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); Cleveland Illuminating Co. v. EPA, 603 F.2d 1 (C.A.6,1979); Save the Bay, Inc. v. Administrator of the EPA, supra; American Iron and Steel Institute v. EPA, supra ; “State/EPA Relations Severely Strained, General Accounting Office Report Says,” 11 Env.Rep. Current Developments 649 (August 29, 1980). This basic statutory framework has been elucidated in a substantial number of cases. See e. g., EPA v. National Crushed Stone Association, - U.S. ——, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980); E. I. DuPont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); EPA v. California, supra; Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (C.A. D.C.1978).

The Act adopts the basic control strategy of limiting the emission of pollutants 13 from “point sources.” 14 EPA v. California, supra, 426 U.S. at 204-205, 96 S.Ct. at 2024-2025; Rodgers, W. H., Environmental Law §§ 4.1 & 4.11 (1977) (“Rodgers”). It begins with the premise that all discharges of pollutants into United States waters are illegal and then specifies several narrowly drawn exceptions to that premise. Section 301(a) provides in pertinent part:

Except as in compliance with this section and sections ... 1342 [section 402 of the Act] ... of this title, the discharge of any pollutant by any person shall be unlawful.

33 U.S.C. § 1311(a). Section 301(b) authorizes the Administrator to establish nationally applicable effluent limitations for categories of point sources. 15 33 U.S.C. § 1311(b). These federally established limitations and other effluent limitations established pursuant to the Act are applied to individual installations through the mechanism of the National Pollution Discharge Elimination System (“NPDES”) whose establishment is authorized by section 402, 33 U.S.C. § 1342.

*739 Under the NPDES program, each dis-charger of pollutants is required to obtain a permit to discharge those pollutants. The permit must incorporate any applicable standards and requirements set in accordance with other sections of the Act, including the § 301 effluent limitations and certain water quality based limitations. In the absence of the “necessary implementing actions relating to all such requirements,” the permit must incorporate such limitations and conditions “as the Administrator determines are necessary to carry out the provisions of” the Act. § 402(a)(1), 33 U.S.C. § 1342(a)(1).

Initially the EPA is authorized to administer the NPDES permit program. However, if a state establishes a program meeting the requirements set forth in section 402(b), 33 U.S.C. § 1342(b), and those contained in EPA regulations authorized by section 304(i), 33 U.S.C. § 1314(i) and now codified at 40 C.F.R. Part 122, 16 the Administrator must turn over the administration of the NPDES program over to that state. Among other statutorily imposed criteria which a state must meet in order to have an NPDES program approved is the requirement that a state have adequate enforcement authority to “abate violations of the permit ... program, including [authority to impose adequate] civil and criminal penalties.” In regards to this requirement, section 309(d) of the Act, 33 U.S.C. § 1319(d), provides that dischargers violating NPDES permits shall be liable for civil penalties of as much as $10,000 per day of violation. Moreover, among the criteria established by the EPA in regulations enacted pursuant to section 304(i), 33 U.S.C. § 1314(i), are the following requirements relating to enforcement and penalties:

(c) Any civil penalty assessed, sought or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation. A civil penalty agreed upon by the State Director in settlement of administrative or judicial litigation may be adjusted by a percentage which represents the likelihood of success in establishing the underlying violation(s) in such litigation.

* * * * * *

In the case of a penalty for a failure to meet a statutory or final permit compliance deadline, “appropriate to the violations,” as used in this paragraph, means a penalty which is equal to:

(1) An amount appropriate to redress the harm or risk to public health or the environment; plus

(2) An amount appropriate to remove the economic benefit gained or to be gained from delayed compliance; plus

(3) An amount appropriate as a penalty for the violator’s degree of recalcitrance, defiance, or indifference to requirements of the law; plus

(4) An amount appropriate to recover unusual or extraordinary enforcement costs thrust upon the public; minus

(5) An amount, if any, appropriate to reflect any part of the noncompliance attributable to the government itself; and minus

(6) An amount appropriate to reflect any part of the noncompliance caused by factors completely beyond the violator’s control (e. g., floods, fires).

40 C.F.R. § 123.9(c). 17

To date, the EPA has delegated the authority to administer the NPDES program to 33 states and the Virgin Islands. Delaware has an approved NPDES program, EPA having delegated the state the authority to administer the permit program in a Memorandum of Understanding dated March 7, 1974. 18

Even after the Administrator has delegated authority over the NPDES system to a state, however, the Act provides for close *740 and continuing oversight and supervision of the state program by the EPA. 19 For example, each state with an approved NPDES permit program must transmit a copy of each permit application to the EPA, and must provide notice to the Administrator of every action related to the permit application, including advance notice of the issuance of each permit. § 402(d)(1), 38 U.S.C. § 1342(d)(1). If the Agency objects to a state’s proposed action within ninety days, because the proposed permit violates the guidelines and requirements of the Act, no permit may issue. § 402(d)(2), 33 U.S.C. § 1342(d)(2). Moreover, EPA may withdraw its approval of a state NPDES program upon determining, after notice and opportunity to respond, that the program is not being administered in compliance with the requirements of section 402, 33 U.S.C. § 1342. See § 402(c)(3), 33 U.S.C. § 1342(c)(3). It was Congress’s intention, however, that the EPA would exercise this latter power with restraint and reserve it for only extreme situations. For example, it is extremely doubtful that the unsatisfactory handling of a single permit would ever warrant EPA revocation of a state’s NPDES authority. See Save the Bay, Inc. v. Administrator of EPA, supra, 556 F.2d at 1284-87, 1290.

The enforcement provision of the Act sets up a similar system, giving primary responsibility to the state with an approved NPDES system but reposing significant authority in the EPA to oversee the state’s administration and to step in itself in appropriate situations. As discussed earlier, as an initial matter, a state must have enforcement authority commensurate with that given the EPA by the Act before a state NPDES program may be approved. Thus, enforcement by the state in the first instance is expected. Likewise, whenever the Administrator finds that any person is in violation of a condition or limitation contained in an NPDES permit, he is first required to notify the violator and the state, thus providing an opportunity for either voluntary compliance or state enforcement in the first instance. § 309(aXl), 33 U.S.C. § 1319(a)(1). However, if “beyond the thirtieth day after the Administrator’s notification the State has not commenced appropriate enforcement action” (emphasis added), the Administrator is required to assume enforcement responsibility himself and either issue a compliance order or bring suit in a United States District Court. § 309(a)(1), 33 U.S.C. § 1319(a)(1). Thus, if the state fails to bring an enforcement action altogether or if the enforcement action the state takes is inappropriate, the Administrator is required to act himself. These unambiguous words of the statute also indicate that the Administrator may bring a suit himself in federal court 20 even though the state has already filed an enforcement action in state court if the Administrator believes the state is not prosecuting that action “expeditiously and vigorously.”

This latter view is further supported by judicial dicta, the Act’s legislative history and other provisions of the Act. Although no court has held as such, the Ninth Circuit recently clearly stated its view that such *741 concurrent proceedings are authorized. In United States v. I.T.T. Rayonier, Inc., 627 F.2d 996, 1001 (C.A.9, 1980), the court noted:

Section 1342(i) reserves EPA’s authority to bring an enforcement action notwithstanding an approved state permit system with concomitant enforcement powers. Enforcement actions could have been filed concurrently in both state and federal courts. See 33 U.S.C. § 1319(b) (federal); 33 U.S.C. § 1342(b)(7) (state).

Later, the court stated:

If the EPA is dissatisfied with state enforcement efforts or the lack thereof it can revoke permit-issuing authority or bring an independent action in federal court.

Id. at 1002. Although not entirely clear, the commentary on section 309 in the legislative history also supports this view:

Against the background of the Clean Air Act and the Refuse Act the Committee concluded that the enforcement presence of the Federal government shall be concurrent with the enforcement powers of the States. The Committee does not intend this jurisdiction of the Federal government to supplant state enforcement. Rather the Committee intends that the enforcement power of the Federal government be available in cases where States and other appropriate enforcement agencies are not acting expeditiously and vigorously to enforce control requirements.

Senate Report No. 92 — 414, 92nd Cong., 2nd Sess., [1972] U.S.Code Cong. & Ad.News, 3668, 3730. The conclusion that the Administrator has the right to bring an action in federal court when the state has already commenced an identical action in state court which it is not diligently prosecuting is most strongly supported by the fact that the citizens’ suit provision of the Act allows any citizen to bring an independent action unless the Administrator or the state is “diligently prosecuting a civil or criminal action ... to require compliance.” § 505, 33 U.S.C. § 1365. To hold that a citizen could bring an independent suit even though a state suit was pending when the state suit was not being vigorously prosecuted 21 and to deny the Administrator such a right would yield the absurd result of denying the official charged with primary enforcement responsibility the same power which is granted to citizens.

In cases of a general failure of the state to enforce permit violations the Administrator has an even more extreme remedy available to him. In such case, the EPA has the authority, after making appropriate findings, to assume responsibility for all enforcement actions in that state. § 309(a)(2), 33 U.S.C. § 1319(a)(2).

It must be noted that Congress clearly indicated its intention that the Administrator use these various enforcement powers judiciously and bring Federal actions only in unusual situations:

The Committee again, however, notes that the authority of the Federal Government should be used judiciously by the Administrator in [if] those cases deserve Federal action because of their national character, scope, or seriousness. The Committee intends the great volume of enforcement actions be brought by the State. It is clear that the Administrator is not to establish an enforcement bureaucracy but rather to reserve his authority for the cases of paramount interest.

Senate Report No. 92-414, 92nd Cong., 2nd Sess., [1972] U.S.Cong. & Ad.News at 3730.

*742 Thus, as the foregoing review of the statutory scheme reveals, Congress created, in the NPDES program, a system of concurrent state-federal jurisdiction. In this system, however, the leading role was granted to the EPA, which was to set the parameters of the state’s authority, to determine the minimum standards for regulation, to oversee closely the state’s implementation of the NPDES program, and to step in where in the Administrator’s judgment it was necessary. Congress also clearly indicated its intention that the EPA use this extensive authority sparingly and only where necessary to preserve the integrity of the national effort to cleanse the nation’s waters. With this in mind, the Court will now examine the facts leading up to this action.

II. Factual Background.

At all times pertinent to this lawsuit, Cargill has owned and operated the Paramount Poultry chicken processing plant which is located in Harbeson, Delaware. 22 That plant discharges its wastewater into the waters of Beaverdam Creek, a tributary of the Broadkill River, which are waters of the United States within the meaning of the Clean Water Act, § 502(7), 33 U.S.C. § 1362(7). 23

Prior to the passage of the Act in 1972, the State of Delaware administered a permit program under which treated wastewater discharges from the plant were regulated. Initially a wastewater treatment lagoon system served as the primary means for treating waterborne wastes generated at the plant. 24 Following the passage of the Federal Water Pollution Control Act Amendments of 1972, the EPA Administrator issued Cargill a three-year NPDES permit on December 28, 1973. 25 This permit necessitated an expansion of Cargill’s treatment system at a company reported cost of approximately $350,000. 26

On January 28, 1977, after the first permit expired, DNREC, which had assumed authority over the NPDES program in 1974, 27 reissued an NPDES permit with more stringent terms and conditions than those incorporated into the first permit. 28 The permit, NPDES Permit No. DE 0000299, was modified and became effective November 9, 1977 and imposed limitations on emissions of various pollutants. 29 It also required the construction of certain control equipment, which was installed at a cost of $60,000. 30

The EPA has not yet published guidelines or § 301 effluent limitations for the Poultry Processing Industry. 31 Therefore, DNREC set the terms and conditions of the permit in accordance with Delaware State DNREC regulations which establish minimum con *743 trol standards for all industrial discharges. 32 Certain of the requirements incorporated in the Cargill permit were imposed due to the fact that at the time they were established DNREC was attempting to alleviate increasingly serious odor problems which had persisted at the plant for a considerable period of time and had occasioned numerous citizen complaints to DNREC in 1976 and 1977. 33 DNREC controls objectionable odors solely in accordance with state laws and regulations, 34 there being no applicable federal regulations. The odor problem was believed to be associated with Cargill’s wastewater treatment system and modifications of that system were proposed as a solution to the odor problem. Because these modifications suggested an ancillary benefit from a wastewater treatment standpoint, the modifications were included as a requirement in the final NPDES permit. 35

The odor problem persisted despite Car-gill’s construction of the waste treatment facilities required by the permit and despite certain other measures taken by Cargill at the direction of DNREC and incorporated into a voluntary Compliance Agreement. 36 In fact, the problem became even more severe, as reflected in renewed citizen complaints to DNREC and U. S. Congressman Pierre DuPont. 37

In addition, the wastewater treatment system did not operate properly and on numerous occasions, Cargill discharged pollutants into Beaverdam Creek in excess of the limits specified by the permit. 38

In response to these two problems DNREC initiated litigation, bringing two lawsuits in the Superior Court of Delaware for Kent County. 39 The first suit was filed on June 13,1978, and alleged only violations of the Delaware State regulations governing the emissions of odors into the air (the “air suit”). 40 The second, filed June 23, 1978, alleged numerous violations of the NPDES permit, including (a) numerous instances in which the discharge of pollutants exceeded permit limitations, (b) failure to complete construction of pollution control facilities required by the permit within the time required, and (c) failure to keep all treatment or control facilities in good working order and operation as efficiently as possible (the “water suit”) 41 On the face of the two complaints, the two suits had nothing more in common than the plaintiff and defendant. The statutes and regulations invoked and the facts alleged were totally different. However, as a practical matter the two lawsuits were related and DNREC treated them as companion lawsuits because the solutions to the odor and water treatment problems were interrelated. 42

Cargill answered both lawsuits and following the initial pleadings settlement negotiations were initiated. The result of such negotiations was a comprehensive proposal submitted by Cargill for resolving the odor problems as well as the related waste-water discharge problems. The basic thrust of the Cargill proposal involved the drain *744 ing of the wastewater treatment lagoons and removal of built-up sludge deposits which were the suspected source of the odor condition. As a means of controlling further sludge buildup and improving the overall wastewater treatment system performance, Cargill also proposed to study, design, and construct extensive modifications to the wastewater treatment system. Through negotiation, the proposal also included a complete review of in-plant practices for the purpose of determining means by which water use could be reduced and wastes removed prior to introduction to the treatment system. The EPA was aware of these proposals and in fact provided some input. 43

DNREC decided that the best means of dealing with the settlement proposal was to enter into a comprehensive stipulation and order regarding the air suit while holding the water suit in abeyance as a bargaining stick pending successful completion of the abatement program. 44 A settlement was entered into in the air suit which basically incorporated the terms of the proposal and required the payment of a $5,000 fine as well. On its face, however, the settlement required only a study regarding a solution to the wastewater treatment problem. The study must include a proposed construction schedule, and although the settlement does not require compliance with the schedule, Cargill has made representations, both to this Court and on previous occasions, that it considers itself bound to complete the construction recommended by the study. 45 Although the settlement agreement related solely to the air suit, in a November 18, 1978 letter to Cargill, DNREC took the position that if, after a full year’s cycle of operation, the actions undertaken by Cargill pursuant to the settlement resulted in a solution to the odor and water problems, DNREC would be willing to settle the pending water suit for a $5,000 penalty. 46

Following the entry of the stipulated order in the air suit until the date that this action was filed, Cargill complied with the terms of the order and completed the following actions:

(a) Accumulated sludge on the bottom of the wastewater treatment lagoons was removed and disposed of at a reported cost of $342,000.

(b) A comprehensive study was undertaken by consultants hired by Cargill to determine in-plant and wastewater treatment practices and procedures deemed effective in minimizing odors and providing consistent effluent quality as related to NPDES permit requirements. The study incorporated suggestions made by the EPA following an inspection of the plant. A final report including a final design schedule and tentative construction schedule was submitted to DNREC in a timely manner.

(c) The report was approved by DNREC and Cargill applied for and on March 28, 1980, received a construction permit authorizing installation of the treatment system modifications recommended in the report. Cargill estimates that the modifications required by the settlement and recommended by the report will cost approximately $1.5 million. 47

In the midst of this activity, on March 25, 1980, the EPA filed the present action, seeking an injunction requiring Cargill to comply with the terms of its permit, the imposition of civil penalties of $10,000 per day of past violation and such other relief as the Court deems proper. 48 This lawsuit was filed despite a specific request from DNREC that EPA not do so because of DNREC’s belief that the federal action would interfere with the ongoing abatement program. 49 This fear was well founded. Cargill, as might be expected, advised both the EPA and DNREC that since it was *745 now faced with this second action seeking injunctive relief in federal court, it would be forced to discontinue work on the abatement program it was pursuing under the terms of the odor suit settlement because of its fear that, if imposed, a federal injunction could be inconsistent with the abatement program being pursued and render its efforts and expenses for naught. 50

The EPA, by a letter of April 24, 1980 to DNREC, committed itself to the position that its requested injunctive relief in this action will not differ from the proposed pollution control equipment and construction schedule submitted by Cargill pursuant to the Consent Decree in the state odor suit. 51 EPA professedly brought this suit solely because it was dissatisfied with DNREC’s prosecution of the suit in two respects. First, the EPA finds the enforcement deficient because DNREC in its stipulation of settlement to the odor suit did not make compliance with the proposed construction schedule mandatory. Secondly, and apparently most importantly, the FPA finds DNREC’s proposed future penalty of $5,000 in settlement of the water suit grossly inadequate and contends that if the factors which must be considered under EPA’s penalty policy, 40 C.F.R. § 123.9, are taken into account a proper penalty would be $405,000. 52

It is under these unique circumstances that Cargill has moved this Court to stay or dismiss the action under the doctrine of abstention or in accordance with its own discretionary power and thereby cut the Gordian knot that has stymied all parties and impeded the accomplishment of the primary goal of the Clean Water Act — the cleansing of the nation’s streams.

III. Absention.

The Court has first determined that the circumstances presented here clearly do not warrant staying or dismissing this suit on grounds of abstention. Abstention is a narrow exception to the duty of the federal courts to adjudicate controversies over which they have jurisdiction and is warranted only in narrowly defined circumstances. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229, 1241 (C.A.3, 1978). As outlined in Colorado River Water Conservation Dist. v. United States, supra, 424 U.S. at 814-17, 96 S.Ct. at 1244-46, the circumstances appropriate for abstention are confined to three categories: (a) cases such as Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), where a constitutional issue has been presented which might be mooted or presented in a different posture by a state court determination of unelucidated pertinent state law (“Pullman abstention”); (b) cases such as Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), where the exercise of federal jurisdiction would substantially interfere with a state’s efforts to enforce a coherent system of purely state regulation bearing upon matters of significant importance to the state (“Burford abstention”); and (e) cases such as Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), where absent special circumstances federal jurisdiction is sought to restrain state criminal proceedings or state nuisance proceedings closely akin to criminal proceedings (“Younger abstention”). Cargill contends that the present case falls within all three categories. The Court disagrees.

As a preliminary matter, it is clear that this Court has jurisdiction over the matter. It has jurisdiction under 33 U.S.C. § 1319(b), § 309(b) of the Act. Moreover, as discussed earlier, in granting this jurisdiction, Congress clearly intended to create concurrent jurisdiction with the state courts and contemplated that in some instances, where appropriate, a federal enforcement suit could be maintained despite the pend- *746 ency of similar proceedings in state court. Jurisdiction also exists under 28 U.S.C. § 1345 which grants United States District Courts jurisdiction in cases where the United States is a plaintiff and under 28 U.S.C. § 1355 which grants United States District Courts exclusive jurisdiction in cases seeking the recovery of a penalty incurred under any Act of Congress.

It is equally clear that Pullman type abstention is unwarranted here. Cargill contends that its answer to the state water suit contains affirmative defenses which allegedly raise federal and state constitutional issues encompassing due process and equal protection considerations. Cargill points specifically to its first affirmative defense wherein it contends that enforcement of the permit “would result in arbitrary, capricious, and discriminatory treatment of defendant and would be without any rational economic or environmental basis.” 53 Cargill further contends that the state court interpretation of the Delaware environmental statute (7 Del.C. ch. 60), the state regulations, and DNREC procedures might obviate the necessity of resolving the constitutional issues.

Application of the Pullman abstention doctrine requires that the party invoking it show three elements: (1) a serious constitutional claim, (2) the existence of an unsettled question of state law, and (3) the likelihood that an alternative construction of that law will make unnecessary, or substantially affect the ultimate resolution of the constitutional issue. Zwickler v. Koota, 389 U.S. 241, 250-51, 88 S.Ct. 391, 396-97, 19 L.Ed.2d 244 (1967); Blake v. Kline, 612 F.2d 718, 727-28 (C.A.3, 1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980); McKnight v. Southeastern Pennsylvania Transportation Authority, supra; Frederick L. v. Thomas, 557 F.2d 373, 383 (C.A.3, 1977); Three Rivers Cablevision, Inc. v. City of Pittsburgh, 502 F.Supp. 1118 at 1122-23 (W.D.Pa.1980). Cargill has failed to do this. At a minimum the party invoking Pullman abstention should be able to articulate each of the three elements with sufficient particularity to enable the Court to evaluate the claim. Here, Cargill has baldly stated that an interpretation of relatively straightforward state laws and regulations might avoid a constitutional decision without specifying what interpretation of what specific law or regulation would do so and, in regards to the constitutional issue, only vaguely referring to due process and equal protection concerns. 54

The Court also finds Burford type abstention singularly inappropriate in this case. See Baltimore Bank for Cooperatives v. Farmers Cheese Cooperative,