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Connecticut Fund for the Env't v. Upjohn Co.

Citation: 17 ELR 21137
No. No. N-85-349 (PCD), 660 F. Supp. 1397/26 ERC 1495/(D. Conn., 05/18/1987)

In a citizen suit under § 505 of the Federal Water Pollution Control Act (FWPCA), the court holds that a chemical manufacturer that discharged pollutants in excess of the limitations specified in its national pollutant discharge elimination system (NPDES) permit is liable for violations of the Act. The court first holds that this suit is not barred by the ban in FWPCA § 505(b)(1)(B) on citizen suits filed after a state has "commenced" an action. The court rules that a state action is "commenced" when a complaint is filed; acts of preparation by state officials for the filing of a complaint may not be considered. The court next declines to abstain from hearing the case pending resolution of the state proceeding. The state court's preliminary determination of liability has made the possibility of inconsistent rulings on liability unlikely, and either court can tailor its relief to that granted by the other court. Further, the federal policy of cleaning the nation's waters strongly favors retention of federal jurisdiction, since Congress intended citizen enforcement to supplement state action as well as to prompt it. Other factors, including the order of jurisdiction, identity of interests of the parties, respect for federal interest, the source of the rule of decision, and the adequacy of state proceedings, also do not require abstention.

The court holds that the discharge limitations in defendant's NPDES permit are effluent limitations with which it was bound to comply, not merely goals. The terms of an order issued by the Connecticut Department of Environmental Protection (DEP) modifying the permit and the statutes under which the order was issued clearly indicate that the order imposed mandatory effluent limitations. Further, the order specifically provided that its provisions were based on the state's best professional judgment, precisely the standard that states must apply in drafting effluent limitations for industries for which the Environmental Protection Agency has not adopted general effluent limitations. The court holds that defendant cannot claim estoppel based on its claim that it relied on the DEP's representations that the permit numbers were goals. Defendant's reliance on these representations was not reasonable, since the DEP order stated that it was an NPDES permit and defendant should have known that the limits in the permit were not merely goals. Further, defendant's failure to challenge the order when it was issued precludes it from doing so now. The court notes, however, that defendant's reliance is relevant to the issue of damages. The court next holds that DEP was not obligated to revise the NPDES permit to conform with the results under the best available technology (BAT) system required by the permit, which provided that revised effluent limitations would be issued to reflect the acutal ability of the facilities to remove the pollutants after the BAT system had been reviewed for one year. The order stated that, regardless of the results of the BAT system, the DEP reserves the right to establish more stringent effluent limitations. Further, defendant was required to comply with the permit while a request for modification was pending and it may not seek modification of its permit in defense to an enforcement action.

The court holds that this suit is not barred by laches despite a delay of four years between the earliest alleged violations and filing of the suit. Plaintiffs monitored the permit hearings in good faith and filed suit when they believed that defendant's efforts were less than sincere. Defendant has also not been prejudiced by the delay, since plaintiff's decision not to file suit earlier cannot be construed as intending to increase defendant's liability or suggesting that the permit contained only goals. The court holds that defendant cannot assert an upset defense, since it has failed to establish the necessary factual basis for the defense or that it complied with the notice requirements. The court holds that defendant may not challenge the accuracy of its own discharge monitoring reports (DMRs). Although defendant has produced credible evidence that the DMRs overstated the discharge levels, dischargers are strictly liable under the FWPCA when they report discharges in excess of permit limits. However, evidence of reporting inaccuracies may be considered in determining the appropriate remedy. The court holds that defendant is not liable for discharges into a publicly owned treatment work, but defendant is liable for de minimis discharges into a river if they exceeded permit limits.

Counsel for Plaintiff
Katherine H. Robinson
Connecticut Fund for the Environment
32 Grand St., Hartford CT 06106
(203) 524-1639

James Thornton
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Defendant
S. Robert Jelley
Wiggin & Dana
195 Church St., P.O. Box 1832, New Haven CT 06508
(203) 789-1511

Douglas E. Kliever, John M. Bredehoft
Cleary, Gottlieb, Steen & Hamilton
1725 N St. NW, Washington DC 20036
(202) 728-2700