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Student Pub. Interest Research Group of N.J. v. Monsanto Co.

Citation: 14 ELR 20228
No. No. 83-2040, (D.N.J., 12/06/1983) Bench ruling

After holding that a Federal Water Pollution Control Act (FWPCA) citizen suit is not barred by a pending Environmental Protection Agency (EPA) enforcement action or the doctrines of primary jurisdiction or standing, the court grants plaintiffs partial summary judgment declaring defendant in violation of its national pollutant discharge elimination system (NPDES) permit.

First, the court rules that § 505 bars citizen suits only if an action has commenced in court. Congress' definition of court, the fact that EPA can only obtain penalties and injunctive relief by petitioning a district court, and the inability of plaintiffs to intervene before the Agency indicate that EPA is not a court. Next, the court holds that the doctrine of primary jurisdiction does not bar the suit. Uniformity and EPA expertise, which would justify limiting enforcement responsibility to the Agency, are factors in permitting and setting pollutant limits but not in this action where plaintiffs only ask the court to compare permitted and actual discharges. Further, defendant's pending permit modification request does not dictate EPA jurisdiction in an enforcement dispute on an already-issued NPDES permit. The court finds no merit in defendant's motions to dismiss for lack of standing and failure to join allegedly indispensable parties. Plaintiffs' allegations that some of their members reside in the area where defendant discharges pollutants satisfy the sufficiently particular injury requirement of standing. As to the joinder issue, the court rules that relief can be accorded and no interest will be impaired if EPA and the state environmental agency are not joined.

Based on 234 permit violations occurring over several years and documented in discharge-monitoring and noncompliance reports, the court grants plaintiffs' summary judgment motion declaring that defendant operated its facility in violation of its NPDES permit, and so violated FWPCA §§ 301 and 402. The court rules that the reports, which must be kept by law, can be used as admissions of liability. It further holds that because of the strict liability provision of the Act the court need not consider defendant's intent or good faith. The court rules that standing and jurisdictional requirements for the motion are met. It also holds that defendant's retroactive permit modification request does not raise liability issues barring summary judgment, because a pending modification request does not stay existing permit requirements and modifications are not retroactively applicable. Also, permits issued before EPA established best practicable technology and based on EPA's best engineering judgment are enforceable.It holds that citizen suits may be used to seek penalties for past violations. Finally, the court rules that EPA's long abeyance of defendant's request for a permit modification does not estop the Agency or plaintiffs from claiming permit violations.

[The court issued its opinion from the bench. The editor has taken liberties with punctuation of the transcript.]

Counsel for Plaintiffs
Bruce J. Terris, Carolyn A. Smith
Terris & Sunderland
1121 12th St. NW, Washington DC 20005
(202) 662-2100

Counsel for Defendant
Robert F. Bloomquist
Davis & Riberkenny
P.O. Box 5459, Cherry Hill NJ 08002
(609) 667-6000

From the Bench