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Student Pub. Interest Research Group of N.J. v. Jersey Cent. Power & Light Co.

Citation: 17 ELR 20350
No. No. 83-2840, 642 F. Supp. 103/24 ERC 1627/(D.N.J., 04/09/1986)

The court holds that plaintiff environmental groups have standing to bring a citizen suit under Federal Water Pollution Control Act (FWPCA) § 505, citizen suits may be brought to recover civil penalties for past violations, a two-year state statute of limitations does not apply to an FWPCA suit, and defendants' permit violations are not excused by the Environmental Protection Agency's (EPA's) "upset" regulation. The court first holds that the two plaintiff environmental groups have standing to sue utilities discharging water polluted from use at a nuclear facility. The 13 affidavits submitted by plaintiffs' members who live and use the area establish injury-in-fact. The court rejects defendants' argument that under the FWPCA plaintiffs must establish that the injury can fairly be traced to defendants. Such an interpretation would effectively prohibit most citizen suits and is contrary to the Act's goal of imposing responsibility for the application of water pollution control technology on the discharging plants. The court next holds that an FWPCA citizen suit may be brought to recover civil penalties for violations occurring before the suit was filed. Defendants' violations occurred over a period of months. Even if the violations were not of a continuing nature, § 505(a) clearly states that the district courts shall have jurisdiction to enforce effluent standards or limitations and to assess civil penalties. Defendants' interpretation would make it impossible for citizens to satisfy the 60-day notice requirement of§ 505(b), since a defendant could manage to be in compliance on the day the suit was actually filed. Moreover, the courts in this district have consistently held that civil penalties are available for past violations of the Act.

The court holds that New Jersey's two-year statute of limitations for enforcement of penalties does not apply to an FWPCA citizen suit. Although a state statute is ordinarily applied where a federal statute contains no limitations, under the FWPCA a citizen plaintiff assumes the role of a private attorney general, stepping into the shoes of the government agency that has not commenced an enforcement action. Since the federal government would not be barred from an FWPCA enforcement action by New Jersey's statute of limitations, neither is the citizen plaintiff. The court next holds that EPA's "upset" regulation excusing exceedances where there is an unintentional and temporary noncompliance with permit limitations does not apply to defendants' discharges. The continuing nature and high number of violations demonstrated by defendants' discharge monitoring reports preclude defendants' noncompliance from being temporary. Moreover, defendants' alleged causes of the noncompliance, unanticipated demand upon a sewage treatment plant and an unanticipated corrosion problem with intake screens, fall expressly within exclusions to the upset defense.

Counsel for Plaintiffs
Bruce J. Terris, Carolyn A. Smith
Terris & Sunderland
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendants
Robert O. Brokaw, Sec'y & General Counsel
Jersey Central Power & Light Co.
Madison Ave. at Punch Bowl Rd., Morristown NJ 07960
(201) 455-8402

Scott M. DuBoff
Bishop, Liberman, Cook, Purcell & Reynolds
1200 17th St. NW, Washington DC 20036
(202) 857-9800